Senate Intelligence Views SolarWinds From The Private Sector Perspective

Congress starts chewing over the hack of agencies and companies, hinting at policy prescriptions.

The first public hearing on the massive hack associated with SolarWinds and most likely perpetrated by the Russian intelligence services occurred this week. The Senate Intelligence Committee heard from private sector witnesses, including from SolarWinds, in what will be the first of many hearings across a number of hearings in both chambers of Congress. Members and witnesses floated legislative and policy fixes that may prevent another massive hack of the United States (U.S.) agencies and the private sector, which is not to say Congress will imminently act. However, like any organization, some Members may have fallen prey to what has been called the “Do Something” fallacy under which the animating belief is that action beats inaction. A number of Members stressed that the full scope and breadth of the hack may not be known for some time, suggesting prudence may be warranted in making systemic changes in U.S. law and policy. However, the power of appearance may overcome prudence and there may soon be legislation.

Both the chair and ranking member did not name the Russian Federation or its foreign intelligence agency, SVR, as the perpetrator of the hack even in though in early January, the Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), the Office of the Director of National Intelligence (ODNI), and the National Security Agency (NSA) issued a joint statement, naming the Russian Federation as the likely perpetrator of the massive SolarWinds hack in what is qualified and hedged language.

Turning to policy prescriptions, the witnesses came armed with plenty. The solutions offered by the witnesses broadly fall into the category of doing more of what is currently happening but better and more widely such as sharing more and better threat information. Of course, the information sharing regime established under the “Cybersecurity Act of 2015” (P.L. 114-113) was marketed at the time as the law needed to foster information sharing between public and private sector entities. Last fall, the Department of Homeland Security’s (DHS) Office of the Inspector General (OIG) issued its biannual report on how this statute has been implemented and found numerous issues, especially related to the lackluster and limited information the Cybersecurity Infrastructure Security Agency (CISA) has been providing the limited number of participants. There are a host of reasons why private sector companies may not participate in this information sharing arrangement as noted in this blog posting from 2015 by a “white shoe” law firm that warned “disclosing information about a company’s own specific cyber vulnerabilities and incidents can carry legal, competitive, and reputational risks that are far greater if that information is learned by competitors and customers.”

Nonetheless, a few witnesses asked the committee for changes in U.S. law that would provide legal protection for firms so they would report cyber incidents to the U.S. government. Some suggested a mandatory reporting regime as currently exists for some regulated entities while others seem to imply liability protection would function as an effective incentive, obviating the need for a requirement. In view of how well CISA’s information sharing arrangement has functioned, it seems a mandatory system will be needed.

In any event, information sharing, even of the best, highest quality, most actionable threat data, will only matter if entities act. For example, there have been reports of SolarWinds not acting to shore up vulnerabilities when informed of them. Likewise, the People’s Republic of China’s massive hack of Equifax was largely made possible because the company failed to apply a widely available patch. And, these are not isolated instances.

In his opening statement, new Chair Mark Warner (D-VA) lauded the committee’s long-time bipartisan tradition, perhaps subtly trying to signal to Members not to politicize matters before the committee. He noted Amazon Web Services (AWS) declined to testify but said they have updated the committee. Warner noted that a number of victims of the hack did not use SolarWinds, which indicates there is much about the attack vector that is not known. He noted that the hack is shaping up to be the biggest and most significant hack in U.S. history. Warner stressed “this intrusion had the possibility of being exponentially worse than what has come to pass so far.” He worried that the unnamed hackers (since Warner never identified the nationality or affiliation of the hackers probably out of an abundance of caution) have established beach heads in numerous companies that will allow them to return to surveil and possibly attack for years in the future.

Warner lamented that the U.S. government’s multi-billion dollar cybersecurity enterprise did not uncover the hack. He noted that had not FireEye revealed it had been penetrated, it is by no means certain the hack would have been discovered by now. Warner wondered what would have happened if FireEye had not come forward. He quoted Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger who said the response will take a long time in both the public and private sectors (which by implication means an expensive process.)

Warner quickly turned to solutions. He said he wanted to hear from witnesses what the Congress and the U.S. government should do and also how private sector entities are responding. Warner summarized the hack as a massive exploitation of authentication and trust systems arranged around the update supply chain. Warner said the attack highlights lingering cybersecurity issues and noted some of the policy solutions some are calling for:

  • Mandatory incidents reporting requirements
  • Requiring a software bill of goods
  • Significantly improving information sharing between the government and private sector

Warner posed some policy questions he thinks need answering:

  • Why should not the U.S. government impose mandatory incident reporting requirements even if this entails some level of liability protection? He conceded it is an open question as to who would receive this information, and if a new entity, whether it be a government or private sector body
  • What policies would improve cybersecurity and incident reporting in the U.S.?
  • Whether the U.S. needs cyber norms that are ideally shared by other nations that would declare certain targets as off limits the same way the laws of war do?

It bears note that despite the joint statement by U.S. security agencies saying it was likely Russia that hacked SolarWind, government agencies, and private sector entities, Warner did not once mention the country. In fact, he did not mention any nation even though there have been reports the PRC may have also hacked SolarWinds into to penetrate U.S. government agencies, namely the Department of Agriculture’s National Finance Center (NFC). Perhaps this is a strategic move to keep the hearing focused on the issues at hand without opening the door for politically explosive topics given the Trump Administration’s treatment of the Russian Federation.

New Ranking Member (and former Chair) Marco Rubio (R-FL) also mentioned his disappointment that AWS opted against appearing at the hearing. He pointed out that the hackers used AWS architecture in large part to conduct the attack, meaning AWS may be getting numerous invitations to testify as Congress continues to dig into the massive hack.

Rubio reiterated Warner’s observation that without FireEye coming forward, the hack may still be unknown today. He stressed there is still much that is not known including who has been breached, what information and systems accessed, and any actions the hackers may have taken. Rubio raised the point that confidence in agency and private sector networks may be long in coming because of the great skill the hackers used, suggesting his expectation that there more victims who do not yet know they have been breached. Or the implication is that there are so many places they could hide or have planted a backdoor, the task of thoroughly searching systems will take an inordinate amount of time. Rubio wondered what the U.S. can do “to raise the bar for the cybersecurity of this nation.”

Rubio rebutted the Biden Administration’s claim that “when there is a compromise of this scope and scale, both across government and across the U.S. technology sector to lead to follow-on intrusions, it is more than a single incident of espionage; it’s fundamentally of concern for the ability for this to become disruptive.” He said such an operation and modus operandi could have resulted in “mass chaos,” but that this is not the situation. Instead, in his view, the hackers engaged in espionage. Rubio cautioned against calls for retaliation against the hackers, especially military responses, until all the facts are known. In doing so, he also warned against using terms like “act of war” to describe what in all likelihood was an espionage operation.

Rubio asserted the committee, Congress, and stakeholders should look at means to shore up U.S. critical infrastructure, namely how to defend better. On this point, Rubio may be gently pushing back against the cult of defend forward and taking the attack to the enemy for U.S. offensive capabilities were largely unchained by the Trump Administration and yet a nation state adversary was able to conduct perhaps the most significant hack in the U.S. history. Rubio added he is open to some cyber incident report mandates.  

Interestingly, Rubio went out of his way to express his desire to be a constructive participant in discussions over information sharing:

We must improve the information sharing between the federal government and private sector. I look forward to being an active and constructive participant in these debates.

Perhaps this is the sort of verbiage or padding staff throws in for their Member to say in order to make them appear reasonable. It is still curious, for why would a Member not be constructive on such an important issue?

As mentioned, the witnesses had many policy descriptions, but there is a need to separate the wheat from the chaff (i.e., thinly disguised advertisements for their companies’ services and policies that would benefit the company). And so, Microsoft President Brad Smith’s extolling the virtues of moving more U.S. operations and systems to the cloud should be questioned given the company’s Azure cloud offerings. Moreover, it is not uncommon for private sector stakeholders to take a Trojan Horse approach to getting pet policies enacted by having them ride along with other policies.

FireEye CEO Kevin Mandia proposed “a federal disclosure program for not only sharing threat indicators but for also providing notification of a breach or incident…[that] should:

  • Safeguard the protection and integrity of electronic and other types of data;
  • Encourage entities to adopt recognized cybersecurity standards and practices with a
  • minimum threshold;
  • Focus less on punitive measures;
  • Provide greater incentives for private sector entities, including liability protections and
  • statutory privilege to not be disclosed in civil litigation (e.g., confidentiality obligations);
  • Protect privacy and civil rights; and
  • Provide technical assistance to small entities that do not have cybersecurity expertise or
  • capabilities.

Mandia also suggested the U.S. government utilize the capabilities of private sector cybersecurity firms, a proposal with the hint of implementing a policy that would apparently benefit his companies and other similar security firms. Mandia stated:

  • The Cybersecurity and Infrastructure Security Agency (CISA) at the Department of Homeland Security has made great strides in recent years to encourage information sharing from the private sector and to develop capabilities that provide cyber threat hunting and incident response capabilities to government agencies and critical infrastructure partners. Unfortunately CISA’s capacity is still limited compared to the relative demand, especially during periods of large-scale or widespread cyber attacks.
  • The only way CISA can be successful is to properly harness the power and respect of the private sector. Private companies have huge resources and talent, and already defend much of our Nation’s infrastructure. We must be more creative about how CISA can leverage and work with private sector talent and resources. This also necessitates involving the National Security Agency and U.S. Cyber Command in certain instances of widespread cyber attacks.
  • In addition to encouraging private sector information sharing, focused attention should be given to building more effective collaboration between the government and private sector critical infrastructure organizations. Providing timely, contextual, and actional information and technical support prior to and during a cyber attack is key to building trust and providing mutual value and benefits to both parties.
  • Although we cannot eliminate or prevent every security incident, prompt and coordinated actions allow us to minimize the impact and consequences of an incident. Rapid detection of the intrusions, combined with more timely notification to victims, would provide organizations an opportunity to mitigate as opposed to just evaluating the impact of the compromise and the value lost to the adversary. Such speed could be achieved through efficient, consistent, and confidential information sharing between and among members of a small consortium of government agencies, law enforcement, security and other private companies.

SolarWinds CEO Sudhakar Ramakrishna stated that “[w]e are committed to contributing our lessons and experiences, and believe this response should build on recommendations from the Cyberspace Solarium Commission and the Fiscal Year 2021 National Defense Authorization Act (NDAA):

  • Improving Industry Government Supply Chain Security Collaboration Building on CISA’s Information Communications Technology Supply Chain Risk Management Task Force and consistent with Solarium Enabling Recommendations 4.6.1 (Increase Support to Supply Chain Risk Management Efforts) and NDAA Section 1713 (Establishment of an Integrated Cybersecurity Center), advocate for a public-private initiative to secure enterprise software and services by increasing threat sharing and fostering greater joint collaboration between private firms and governments stakeholders including CISA, FBI, DOD and ODNI.
  • Improving Federal Government Cybersecurity Standards Building on DOD’s Cybersecurity Maturity Model Certification (CMMC) effort for Department of Defense contractors and continued security enhancements to the Federal Information Security Modernization Act (FISMA), support the creation of industry-wide security standards based on continuous risk monitoring and measurement for current and potential government contractors.
  • Improving Incident Notification to the Government Consistent with Enabling Recommendation 4.7.1 (Pass a National Breach Notification Law), empower organizations with the appropriate incentives and liability protections to share more information on attempted or successful breaches with government cybersecurity authorities. Indicators of compromise associated with those events shared with software vendors in an anonymized way enriches the understanding of prevailing threat actor techniques and target sets, enabling software providers to improve defenses and better protect users.

Microsoft President Brad Smith offered the most extensive, detailed suggestions, which will be quoted only in relevant part:

  • First, we need to strengthen supply chain security for the private sector and the U.S. Government for both software and hardware.
    • There are existing best practices to draw upon, especially for software supply chain security. Any software developed or procured by federal agencies, including software that powers cloud services to which agencies subscribe, should reflect secure development practices and clear commitments to maintain software, including through vulnerability management, during the defined life of a product. Federal agencies should also require use of integrity controls throughout the software development, testing, and delivery processes, mitigating the risk of an attacker inserting malicious code before a new software product or update is delivered to users.
  • Second, we need to broaden use of cybersecurity best practices, including through improved cyber hygiene and a commitment to IT modernization.
    • Cloud migration is critical to improving security maturity across many organizations. At the same time, it’s not a panacea; even as technology users modernize legacy systems, they need to have strong basic security practices in place. This includes fundamentals for establishing a Zero Trust environment, assessing the security of cloud providers, and re-orienting risk management activities to complement third party services and security automation.
    • At a national level, Microsoft recommends that the U.S. government, and particularly CISA, drive a national effort to improve cyber hygiene, with a particular focus on identity and access management. The SolarWinds incident makes plain why all organizations, including governments, must heighten their focus on implementing basic security best practices, even as we harden technology development processes and explore other steps.
  • Third, we need a national strategy to strengthen how we share threat intelligence across the entire security community.
    • The time has come for a more formal and cohesive national strategy for the exchange of cybersecurity threat intelligence between the public and private sectors. This strategy should have provisions for threat intelligence sharing during incident response – when collaboration should be at its best and when competitors and others should set aside differences to focus on the security of the nation and the interconnected global technology ecosystem. But to make this strategy work in any context, foundational issues must be addressed, strengthening cross-government visibility, declassification, and trust in private sector actors to not misuse information that can facilitate threat hunting and remediations.
  • Fourth, we need to impose a clear, consistent disclosure obligation on the private sector.
    • In the U.S., there is currently a patchwork of obligations in place. This includes state data breach notification requirements, which cover instances in which customer data is accessed, and federal procurement requirements, including a Department of Defense regulation that requires contactors to report cyber incidents and conduct investigations. By comparison, other parts of the world have requirements that are applied more consistently across organizations operating in their jurisdictions. In the European Union, for example, all digital service providers are required to notify their competent authority of any incident having a substantial impact on the provision of a service.
    • Disclosure should not be limited just to the private sector. In exchange for imposing such an obligation, government should also commit to faster and more comprehensive sharing of relevant information with the relevant security community.
  • Finally, we need to strengthen the rules of the road for nation state conduct in cyberspace.
    • However, as it stands, existing rules are sometimes considered ill-defined and rarely enforced. Despite recommendations by a global group of experts, the United States and like-minded allies need to speak more boldly to make clear that indiscriminate and disproportionate supply chain attacks that put technology users at risk and undermine trust in the very processes designed to protect them are out of bounds for state actors. As Anne Neuberger acknowledged last week, even if the Russian actor primarily leveraged its extraordinary potential access to exfiltrate data, the scope and scale of the attack on SolarWinds customers denote much more than an isolated case of espionage. Attacks that leverage supply chains and widely disrupt confidence in data, systems, and update processes impact many users beyond those targeted. If enough users doubt the integrity of their systems or data, the stability of cyberspace and our readiness to rely on it could be impaired.
    • The U.S. government has a critical leadership role in advancing international consensus on establishing and enforcing a rules-based order, and we urge policymakers to lead in ongoing international processes such as at the United Nations and to join the Paris Call for Trust and Security in Cyberspace.

CrowdStrike President and CEO George Kurtz suggested “there is room for improvement in Federal cybersecurity” because “our government colleagues are hobbled by legacy technologies and programs, complex procurement processes, or compliance obligations that detract from core security work.” He said “[f]or the Cybersecurity and Infrastructure Security Agency (CISA), new authorities to hunt across the “.gov” domain recommended by the Cyberspace Solarium Commission and granted by the FY21 National Defense Authorization Act (NDAA) could be a game-changer.” Kurtz added:

Programs like the National Cybersecurity Protection System (NCPS/”EINSTEIN”) and Continuing Diagnostics and Mitigation (CDM) should be enhanced to realize this vision. And across the broader Federal government, more progress and investment can be made on IT modernization, with security as a central consideration. Finally, we support ongoing, bipartisan efforts in this Chamber to review and reform the Federal Information Security Modernization Act (FISMA).

Kurtz encouraged “the Committee to view cybersecurity holistically.” He said:

Employing qualified personnel, conducting specialized training, implementing valid methodologies, strategically leveraging third-party capabilities and expertise, and having informed and involved leadership are all critical factors in a successful overarching cybersecurity risk management program.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Adi Goldstein on Unsplash

Further Reading, Other Developments, and Coming Events (16 February 2021)

Further Reading

  • India cuts internet around New Delhi as protesting farmers clash with police” By Esha Mitra and Julia Hollingsworth — CNN; “Twitter Temporarily Blocked Accounts Critical Of The Indian Government” By Pranav Dixit — BuzzFeed News. Prime Minister Narendra Modi’s government again shut down the internet as a way of managing unrest or discontent with government policies. The parties out of power have registered their opposition, but the majority seems intent on using this tactic time and again. One advocacy organization named India as the nation with the most shutdowns in 2019, by far. The government in New Delhi also pressed Twitter to take down tweets and accounts critical of the proposed changes in agricultural law. Twitter complied per its own policies and Indian law and then later restored the accounts and tweets.
  • Lacking a Lifeline: How a federal effort to help low-income Americans pay their phone bills failed amid the pandemic” By Tony Romm — The Washington Post. An excellent overview of this Federal Communications Commission (FCC) program and its shortcomings. The Trump era FCC blunted and undid Obama era FCC reforms designed to make the eligibility of potential users easier to discern, among other changes. At the end of the day, many enrollees are left with a fixed number of minutes for phone calls and 4GB of data a month, or roughly what my daughter often uses in a day.
  • She exposed tech’s impact on people of color. Now, she’s on Biden’s team.” By Emily Birnbaum — Protocol. The new Deputy Director for Science and Society in the Office of Science and Technology Policy (OSTP) is a former academic and researcher who often focused her studies on the intersection of race and technology, usually how the latter failed minorities. This is part of the Biden Administration’s fulfillment of its campaign pledges to establish a more inclusive White House. It remains to be seen how the administration will balance the views of those critical of big technology with those hailing from big technology as a number of former high ranking employees have already joined or are rumored to be joining the Biden team.
  • Vaccine scheduling sites are terrible. Can a new plan help Chicago fix them?” By Issie Lapowsky — Protocol. As should not be shocking, many jurisdictions across the country have problematic interfaces for signing up for vaccination against COVID-19. It sounds reminiscent of the problems that plagued the Obamacare exchanges rollout in that potentially well thought out policy was marred by a barely thought out public face.
  • Google launches News Showcase in Australia in sign of compromise over media code” By Josh Taylor — The Guardian; “Cracks in media code opposition as Microsoft outflanks Google and Facebook” By Lisa Visentin — The Sydney Morning Herald. Both Google and Canberra seem to be softening their positions as the company signed up a number of major media outlets for its News Showcase, a feature that will be made available in Australia that will compensate the news organizations at an undisclosed level. However, a few major players, Nine, News Corp., and the Australian Broadcasting Corporation, have not joined, with Nine saying it will not. Google’s de-escalation of rhetoric and tactics will likely allow Prime Minister Scott Morrison’s government to relax the proposed legislation that would mandate Google and Facebook compensate Australian news media (i.e., the News Media and Digital Platforms Mandatory Bargaining Code.) Microsoft’s theoretical entrance into the Australian market through Bing if Google and Facebook actually leave or limit their presence seems to be arguing against the latter two companies’ position that the new code is unworkable. It is not clear if Microsoft is acting earnestly or floating a possible scenario in order that the other companies be cast in a bad light. In any event, cristics of the platforms say the fight is not about the technical feasibility of compensating news media but rather about establishing a precedent of paying for content the platforms now get essentially for free. Other content creators and entities could start demanding payment, too. An interesting tidbit from the second article: Canada may soon join Australia and the European Union in enacting legislation requiring Big Tech to pay its media companies for using their content (i.e., “a more equitable digital regulatory framework across platforms and news media” according to a minister.)

Other Developments

  • The Maryland legislature overrode Governor Larry Hogan’s (R) veto, and the first tax on digital advertising has been enacted in the United States. The “Taxation – Tobacco Tax, Sales and Use Tax, and Digital Advertising Gross Revenues Tax” (HB0732) would impose a tax on digital advertising in the state and may be outside a federal bar on certain taxes on internet services. However, if the veto is overridden, there will inevitably be challenges, and quite likely a push in Congress to enact a federal law preempting such digital taxes. Additionally, the primary sponsor of the legislation has introduced another bill barring companies from passing along the costs of the tax to Maryland businesses and consumers.
    • In a bill analysis, the legislature asserted about HB0732:
      • The bill imposes a tax on the annual gross revenues of a person derived from digital advertising services in the State. The bill provides for the filing of the tax returns and making tax payments. The part of the annual gross revenues of a person derived from digital advertising services in the State are to be determined using an apportionment fraction based on the annual gross revenues of a person derived from digital advertising services in the State and the annual gross revenues of a person derived from digital advertising services in the United States. The Comptroller must adopt regulations that determine the state from which revenues from digital advertising services are derived.
      • The digital advertising gross revenues tax is imposed at the following rates:
        • 2.5% of the assessable base for a person with global annual gross revenues of $100.0 million through $1.0 billion;
        • 5% of the assessable base for a person with global annual gross revenues of $1.0 billion through $5.0 billion;
        • 7.5% of the assessable base for a person with global annual gross revenues of $5.0 billion through $15.0 billion; and
        • 10% of the assessable base for a person with global annual gross revenues exceeding $15.0 billion.
    • In his analysis, Maryland’s Attorney General explained:
      • House Bill 732 would enact a new “digital advertising gross revenues tax.” The tax would be “imposed on annual gross revenues of a person derived from digital advertising services in the State.” Digital advertising services are defined in the bill to include “advertisement services on a digital interface, including advertisements in the form of banner advertising, search engine advertising, interstitial advertising, and other comparable advertising services.” The annual gross revenues derived from digital advertising services is set out in a formula in the bill.
      • Attorney General Brian Frosh conceded there will be legal challenges to the new Maryland tax: there are “three grounds on which there is some risk that a reviewing court would find that the taxis unconstitutional: (1) preemption under the federal Internet Tax Freedom Act; (2) the Commerce Clause; and, (3) the First Amendment.”
  • Democratic Members introduced the “Secure Data and Privacy for Contact Tracing Act” (H.R.778/S.199) in both the House and Senate, legislation that “would provide grants to states that choose to use technology as part of contact tracing efforts for COVID-19 if they agree to adopt strong privacy protections for users” per their press release. Representatives Jackie Speier (D-CA) and Debbie Dingell (D-MI) introduced the House bill and Senators Brian Schatz (D-HI) and Tammy Baldwin (D-WI) the Senate version. Speier, Dingell, Schatz, and Baldwin contended “[t]he Secure Data and Privacy for Contact Tracing Actprovides grant funding for states to responsibly develop digital contact tracing technologies consistent with the following key privacy protections:
    • Digital contact tracing tech must be strictly voluntary and provide clear information on intended use.
    • Data requested must be minimized and proportionate to what is required to achieve contact tracing objectives.
    • Data must be deleted after contact tracing processing is complete, or at the end of the declaration of emergency.
    • States must develop a plan for how their digital contact tracing technology compliments more traditional contact tracing efforts and describe efforts to ensure their technology will be interoperable with other states. 
    • States must establish procedures for independent security assessments of digital contact tracing infrastructure and remediate vulnerabilities. 
    • Information gathered must be used strictly for public health functions authorized by the state and cannot be used for punitive measures, such as criminal prosecution or immigration enforcement.
    • Digital contact tracing tech must have robust detection capabilities consistent with CDC guidance on exposure. 
    • Digital contact tracing technology must ensure anonymity, allowing only authorized public health authorities or other authorized parties to have access to personally identifiable information.
  • The chair and ranking member of the Senate Intelligence Committee wrote the heads of the agencies leading the response to the Russian hack of the United States (U.S.) government and private sector entities through SolarWinds, taking them to task for their thus far cloistered, siloed approach. In an unusually blunt letter, Chair Mark Warner (D-VA) and Ranking Member Marco Rubio (R-FL) asked the agencies name a leader to the response triggered when former President Donald Trump triggered the system established in Presidential Policy Directive-41 because “[t]he federal government’s response so far has lacked the leadership and coordination warranted by a significant cyber event, and we have little confidence that we are on the shortest path to recovery.” Warner and Rubio directed this request to Director of National Intelligence Avril Haines, National Security Agency and Cyber Command head General Paul Nakasone, Federal Bureau of Investigation (FBI) Director Christopher Wray, and Cybersecurity and Infrastructure Security Agency (CISA) Acting Director Brandon Wales. Warner and Rubio further asserted:
    • The briefings we have received convey a disjointed and disorganized response to confronting the breach. Taking a federated rather than a unified approach means that critical tasks that are outside the central roles of your respective agencies are likely to fall through the cracks. The threat our country still faces from this incident needs clear leadership to develop and guide a unified strategy for recovery, in particular a leader who has the authority to coordinate the response, set priorities, and direct resources to where they are needed. The handling of this incident is too critical for us to continue operating the way we have been.
  • Huawei filed suit against the Federal Communications Commission’s (FCC) decision to “designate Huawei, as well as its parents, affiliates, and subsidiaries, as companies posing a national security threat to the integrity of our nation’s communications networks and the communications supply chain” through “In the Matter of Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs – Huawei Designation.” In the petition filed with the United States Court of Appeals for the Fifth Circuit, Huawei said it is “seek[ing] review of the Final Designation Order on the grounds that it exceeds the FCC’s statutory authority; violates federal law and the Constitution; is arbitrary, capricious, and an abuse of discretion, and not supported by substantial evidence, within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; was adopted through a process that failed to provide Petitioners with the procedural protections afforded by the Constitution and the Administrative Procedure Act; and is otherwise contrary to law.”
  • According to unnamed sources, the Biden Administration has decided to postpone indefinitely the Trump Administration’s efforts to forcing ByteDance to sell TikTok as required by a Trump Administration executive order. Last September, it appeared that Oracle and Walmart had reached a deal in principle with ByteDance that quickly raised more questions that it settled (see here for more details and analysis.) There are reports of ByteDance working with the Committee on Foreign Investment in the United States (CFIUS), the inter-agency review group, that ordered ByteDance to spin off TikTok. TikTok and CFIUS are reportedly talking about what an acceptable divestment would look like, but of course, under recently implemented measures, the People’s Republic of China (PRC) would also have to sign off. Nonetheless, White House Press Secretary Jen Psaki remarked at a press conference “[t]here is a rigorous CFIUS process that is ongoing.”
  • The Biden Administration has asked two federal appeals courts to pause lawsuits brought to stop the United States (U.S.) government from enforcing the Trump Administration executive order banning TikTok from the United States (see here for more analysis.)
    • In the status report filed with the United States Court of Appeal for the District of Columbia, TikTok and the Department of Justice (DOJ) explained:
      • Defendants’ counsel informed Plaintiffs’ counsel regarding the following developments: As the Biden Administration has taken office, the Department of Commerce has begun a review of certain recently issued agency actions, including the Secretary’s prohibitions regarding the TikTok mobile application at issue in this case. In relation to those prohibitions, the Department plans to conduct an evaluation of the underlying record justifying those prohibitions. The government will then be better positioned to determine whether the national security threat described in the President’s August 6, 2020 Executive Order, and the regulatory purpose of protecting the security of Americans and their data, continue to warrant the identified prohibitions. The Department of Commerce remains committed to a robust defense of national security as well as ensuring the viability of our economy and preserving individual rights and data privacy.
    • In its unopposed motion, the DOJ asked the United States Court of Appeals for the Third Circuit “hold this case in abeyance, with status reports due at 60-day intervals.” The DOJ used exactly the same language as in the filing in the D.C. Circuit.
  • The Trump Administration’s President’s Council of Advisors on Science and Technology (PCAST) issued a report at the tail end of the  administration, “Industries of the Future Institutes: A New Model for American Science and Technology Leadership,” that “follows up on a recommendation from PCAST’s report, released June 30, 2020, involving the formation of a new type of multi-sector research and development organization: Industries of the Future Institutes (IotFIs)…[and] provides a framework to inform the design of IotFIs and thus should be used as preliminary guidance by funders and as a starting point for discussion among those considering participation.”
    • PCAST “propose[d] a revolutionary new paradigm for multi-sector collaboration—Industries of the Future Institutes (IotFIs)—to address some of the greatest societal challenges of our time and to ensure American science and technology (S&T) leadership for decades to come.” PCAST stated “[b]y driving research and development (R&D) at the intersection of two or more IotF areas, these Institutes not only will advance knowledge in the individual IotF topics, but they also will spur new research questions and domains of inquiry at their confluence.” PCAST added:
      • By engaging multiple disciplines and each sector of the U.S. R&D ecosystem—all within the same agile organizational framework—IotFIs will span the spectrum from discovery research to the development of new products and services at scale. Flexible intellectual property terms will incentivize participation of all sectors, and reduced administrative and regulatory burdens will optimize researcher time for creativity and productivity while maintaining appropriate safety, transparency, integrity, and accountability. IotFIs also will serve as a proving ground for new, creative approaches to organizational structure and function; broadening participation; workforce development; science, technology, engineering, and math education; and methods for engaging all sectors of the American research ecosystem. Ultimately, the fruits of IotFIs will sustain American global leadership in S&T, improve quality of life, and help ensure national and economic security for the future.
  • Per the European Commission’s (EC) request, the European Data Protection Board (EDPB) issued clarifications on the consistent application of the General Data Protection Regulation (GDPR) with a focus on health research. The EDPB explained:
    • The following response of the EDPB to the questions of the European Commission should be considered as a first attempt to take away some of the misunderstandings and misinterpretations as to the application of the GDPR to the domain of scientific health research. Generally speaking, most of these questions call for more time for in-depth analysis and/or a search for examples and best practices and can as yet not be completely answered.
    • In its guidelines (currently in preparation and due in 2021) on the processing personal data for scientific research purposes, the EDPB will elaborate further on these issues while also aiming to provide a more comprehensive interpretation of the various provisions in the GDPR that are relevant for the processing of personal data for scientific research purposes.
    • This will also entail a clarification of the extent and scope of the ‘special derogatory regime’ for the processing of personal data for scientific research purposes in the GDPR. It is important that this regime is not perceived as to imply a general exemption to all requirements in the GDPR in case of processing data for scientific research purposes. It should be taken into account that this regime only aims to provide for exceptions to specific requirements in specific situations and that the use of such exceptions is made dependent on ‘additional safeguards’ (Article 89(1) GDPR) to be in place.
  • The Government Accountability Office (GAO) has assessed how well the Federal Communications Commission (FCC) has rolled out and implemented its Lifeline National Verifier (referred to as Verifier by the GAO) to aid low income people in accessing telecommunications benefits. The Verifier was established in 2016 to address claims that allowing telecommunications carriers to make eligibility determinations for participation in the program to help people obtain lower cost communications had led to waste, fraud, and abuse. House Energy and Commerce Committee Chair Frank Pallone Jr. (D-NJ), Communications and Technology Subcommittee Chair Mike Doyle (D-PA), and six Democratic colleagues on the committee asked the GAO “to review FCC’s implementation of the Verifier.” The GAO explained “[t]his report examines (1) the status of the Verifier; (2) the extent to which FCC coordinated with state and federal stakeholders, educated consumers, and facilitated involvement of tribal stakeholders; and (3) the extent to which the Verifier is meeting its goals.” The GAO concluded:
    • The Lifeline program is an important tool that helps low-income Americans afford vital voice and broadband services. In creating the Lifeline National Verifier, FCC sought to facilitate eligible Americans’ access to Lifeline support while protecting the program from waste, fraud, and abuse. Although USAC, under FCC’s oversight, has made progress to implement the Verifier, many eligible consumers are unaware of it and may be unable to use it. Additionally, tribal governments and organizations do not have the information they need from FCC to effectively assist residents of tribal lands in using the Verifier to enroll in Lifeline, even though Lifeline support is critical to increasing access to affordable telecommunications services on tribal lands. Without FCC developing a plan to educate consumers about the Verifier and empowering tribal governments to assist residents of tribal lands with the Verifier, eligible consumers, especially those on tribal lands, will continue to lack awareness of the Verifier and the ability to use it.
    • Further, without measures and information to assess progress toward some of its goals, FCC lacks information it needs to refine and improve the Verifier. While it is too soon to determine if the Verifier is protecting against fraud, FCC has measures in place to monitor fraud moving forward. However, FCC lacks measures to track the Verifier’s progress toward the intent of its second goal of delivering value to Lifeline consumers. FCC also lacks information to help it assess and improve its efforts to meet the third goal of improving the consumer experience. Additionally, consumers may experience challenges with the Verifier’s online application, such as difficulty identifying the Verifier as a government service, and may be uncomfortable providing sensitive information to a website that does not use a “.gov” domain. Unless FCC identifies and addresses challenges with the Verifier’s manual review process and its online application, it will be limited in its ability to improve the consumer experience. As a result, some eligible consumers may abandon their applications and go without the support they need to access crucial telecommunications services. Given that a majority of Lifeline subscribers live in states without state database connections and therefore must undergo manual review more frequently, ensuring that challenges with the manual review process are resolved is particularly important.
    • The GAO recommended:
      • The Chairman of FCC should develop and implement a plan to educate eligible consumers about the Lifeline program and Verifier requirements that aligns with key practices for consumer education planning. (Recommendation 1)
      • The Chairman of FCC should provide tribal organizations with targeted information and tools, such as access to the Verifier, that equip them to assist residents of tribal lands with their Verifier applications. (Recommendation 2)
      • The Chairman of FCC should identify and use performance measures to track the Verifier’s progress in delivering value to consumers. (Recommendation 3)
      • The Chairman of FCC should ensure that it has quality information on consumers’ experience with the Verifier’s manual review process, and should use that information to improve the consumer experience to meet the Verifier’s goals. (Recommendation 4)
      • The Chairman of FCC should ensure that the Verifier’s online application and support website align with characteristics for leading federal website design, including that they are accurate, clear, understandable, easy to use, and contain a mechanism for users to provide feedback. (Recommendation 5)
      • The Chairman of FCC should convert the Verifier’s online application, checklifeline.org, to a “.gov” domain. (Recommendation 6)

Coming Events

  • The House Appropriations Committee’s Financial Services and General Government Subcommittee will hold an oversight hearing on the Election Assistance Commission (EAC) on 16 February with EAC Chair Benjamin Hovland.
  • On 17 February, the House Energy and Commerce Committee’s Communications and Technology Subcommittee will hold a hearing titled “Connecting America: Broadband Solutions to Pandemic Problems” with these witnesses:
    • Free Press Action Vice President of Policy and General Counsel Matthew F. Wood
    • Topeka Public Schools Superintendent Dr. Tiffany Anderson
    • Communications Workers of America President Christopher M. Shelton
    • Wireless Infrastructure Association President and CEO Jonathan Adelstein
  • On 17 February, the Federal Communications Commission (FCC) will hold an open meeting, its first under acting Chair Jessica Rosenworcel, with this tentative agenda:
    • Presentation on the Emergency Broadband Benefit Program. The Commission will hear a presentation on the creation of an Emergency Broadband Benefit Program. Congress charged the FCC with developing a new $3.2 billion program to help Americans who are struggling to pay for internet service during the pandemic.
    • Presentation on COVID-19 Telehealth Program. The Commission will hear a presentation about the next steps for the agency’s COVID-19 Telehealth program. Congress recently provided an additional $249.95 million to support the FCC’s efforts to expand connected care throughout the country and help more patients receive health care safely.
    • Presentation on Improving Broadband Mapping Data. The Commission will hear a presentation on the work the agency is doing to improve its broadband maps. Congress directly appropriated $65 million to help the agency develop better data for improved maps.
    • Addressing 911 Fee Diversion. The Commission will consider a Notice of Proposed Rulemaking that would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the Commission to take action to help address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911. (PS Docket Nos. 20-291, 09-14)
    • Implementing the Secure and Trusted Communications Networks Act. The Commission will consider a Third Further Notice of Proposed Rulemaking that proposes to modify FCC rules consistent with changes that were made to the Secure and Trusted Communications Networks Act in the Consolidated Appropriations Act, 2021. (WC Docket No. 18-89)
  • On 18 February, the House Financial Services will hold a hearing titled “Game Stopped? Who Wins and Loses When Short Sellers, Social Media, and Retail Investors Collide” with Reddit Co-Founder and Chief Executive Officer Steve Huffman testifying along with other witnesses.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Zachary Peterson on Unsplash

Further Reading, Other Developments, and Coming Events (11 February 2021)

Further Reading

  • 3G Could End This Year. For People Who Rely on Basic Phones, That’s a Big Problem.” By Hannah Frishberg — OneZero. The major telecommunications carriers will soon shut down their 3G coverage and with it, the last of the “dumb” phones will theoretically no longer work. There are other issues, however. In some rural areas 4G is spotty when available.
  • ‘It let white supremacists organize’: the toxic legacy of Facebook’s Groups” By Kari Paul — The Guardian. Who knew that stacking up dry wood, dousing it in lighter fluid, and keeping an open flame nearby would lead to bad results? In the same vein, who knew that putting together an algorithm that pushed people to join groups, the prevalence of extremist and white supremacist groups, and little to no oversight or policing of these groups would result in an explosion of radicalization on Facebook? Only Nostradamus could have seen this coming. And, shockingly, experts and critics of Facebook are not impressed with the latest layout of deck chairs on the proverbial Titanic in response to the extremism the platform helped bring about.
  • World Wide Web inventor Tim Berners-Lee takes on Google, Facebook, Amazon to fix the internet” By Michael Braga — USA Today. Tim Berners-Lee and John Bruce have started Inrupt.com a new paradigm that would allow people to essentially store their personal data in pods that platforms would have to request permission to use. They are banking that this shift could lead to the decline in dominance of Google, Apple, Facebook, Amazon and Microsoft (GAFAM).
  • Biden’s whole-of-National Security Council strategy” By Bethany Allen-Ebrahimian — Axios. This is a good overview of how the National Security Council has been remade to focus on the People’s Republic of China (PRC) across its entire remit. How this translates into policy remains to be seen.
  • Amazon’s anti-union blitz stalks Alabama warehouse workers everywhere, even the bathroom” By Jay Greene — The Washington Post. As it has in the past, Amazon is going all out to stop a facility in Alabama from forming a union. Ballots are currently being cast by mail. If a union is certified, it would be the first in the United States at an Amazon facility.  

Other Developments

  • 37 Democratic Senators wrote the acting chair of the Federal Communications Commission (FCC) to “utilize the E-Rate program to start bridging the “homework gap” without delay.” A few days earlier, the FCC announced that it is “seeking comment on several petitions requesting permission to use E-Rate program funds to support remote learning during the pandemic.” Comments are due by 16 February and reply comments are due by 23 February. Nonetheless, the group of Senators, led by Senator Ed Markey (D-MA) and new Senate Commerce, Science, and Transportation Committee Chair Maria Cantwell (D-WA), asserted to acting FCC Chair Jessica Rosenworcel:
    • As we approach the one year-anniversary of this public health crisis, studies indicate that as many as 12 million children in the United States still lack internet access at home and are unable to participate in online learning. These students are disproportionally from communities of color, low-income households, Tribal lands, and rural areas. Despite our repeated call to address this homework gap, your predecessor at the FCC refused to use the emergency authority available to the Chair and resources available through the E-Rate program to connect these vulnerable children. This mistake allowed far too many students to fall behind in their education.
    • We appreciate that you have already recognized the FCC’s ability to act, including by asserting in congressional testimony that “the FCC could use E-Rate right now to provide every school library with Wi-Fi hotspots and other connectivity devices to loan out to students who lack reliable internet access at home.” In accordance with this statement, we urge you to now use your new leadership of the FCC to depart from the prior Commission’s erroneous position. Specifically, we request that you leverage the E-Rate program to begin providing connectivity and devices for remote learning. Although the funds currently available through the E-Rate will not be enough to connect every student across the country, your prompt action would provide an essential down payment. From there, Congress must provide the resources needed to finish the job by passing our Emergency Educational Connections Act, legislation that would appropriate billions more to be delivered through the E-Rate program to help close the homework gap during the pandemic.
  • Two Senators and Eight Representatives, all Democrats, “asked the National Security Agency (NSA) to explain the NSA’s actions to protect the government from supply chain attacks, like the recent SolarWinds hack, in which malicious code is snuck into commercial software used by the government” per their press release. They recited the history of a compromised encryption algorithm the NSA pressed on the National Institute of Standards and Technology (NIST) to publish as a government standard even though it contained a backdoor NSA created. Juniper, a networking company, started using this encryption algorithm a few years afterwards without knowing of the NSA’s action. The letter presses the NSA to turn over information about the subsequent hack of Juniper, which the Members implicitly compare to SolarWinds. Senators Ron Wyden (D-OR) and Cory Booker (D-NJ) and Representatives Pramila Jayapal (D-WA), Tom Malinowski (D-NJ), Ted Lieu (D-CA), Stephen Lynch (D-MA), Bill Foster (D-IL), Suzan DelBene (D-WA), Yvette Clarke (D-NY), and Anna Eshoo (D-CA) signed the letter. They claimed:
    • The recent SolarWinds hack has brought attention to the vulnerability of the government to supply chain attacks. However, five years ago another vendor to the U.S. government – Juniper Networks – revealed it also inadvertently delivered software updates containing malicious code. 
    • In 2015, Juniper revealed a security breach in which hackers modified the software the company delivered to its customers. Researchers subsequently discovered that Juniper had been using an NSA-designed encryption algorithm, which experts had long argued contained a backdoor, and that the hackers modified the key to this backdoor.
    • However, despite promising a full investigation after it announced the breach, Juniper has never publicly accounted for the incident.
    • The Members “asked the NSA to answer the following questions
      • After Juniper’s 2015 public disclosure that it inadvertently delivered software updates and products to customers containing malicious code, what actions did NSA take to protect itself, the Department of Defense, and the U.S. government from future software supply chain hacks? For each action, please identify why it was not successful in preventing the compromise of numerous government agencies in 2020 by a malware-laden update delivered by SolarWinds.
      • In the summer of 2018, during an unclassified briefing with Senator Wyden’s office, senior NSA officials revealed the existence of a “lessons learned” report on the Dual_EC_DRBG algorithm. Senator Wyden’s office has repeatedly requested this report, but NSA has yet to provide it. Please provide us with a copy of this report and any official historical reports that describe this algorithm, its development, and subsequent exploitation.
      • At the time that NSA submitted Dual_EC_DRBG to NIST for certification, did NSA know the algorithm contained a backdoor?
      • According to the NIST cryptographer’s postmortem, NSA informed NIST in 2005 that it selected the “Q” value that was published in the NIST Duel_EC_DRBG standard in a “secure, classified way.” Was this statement accurate? Please explain.
      • Juniper has confirmed that it added support for Dual_EC_DRBG “at the request of a customer,” but refused to identify that customer, or even confirm whether that customer was a U.S. government agency. Did NSA request that Juniper include in its products the Dual_EC_DRBG algorithm, P and Q values which were different from those published by NIST, or another NSA-designed encryption standard named Extended Random?
      • What statutory legal authority, if any, would permit NSA to introduce vulnerabilities into U.S. government approved algorithms certified by NIST and to keep those vulnerabilities hidden from NIST?
      • Would efforts by NSA to introduce backdoors or other vulnerabilities into government standards require the approval of the NSA Director, an inter-agency consultation, including input from the Cybersecurity and Infrastructure Security Agency, the Department of Commerce, the Federal Trade Commission, and the Federal Communications Commission? Would they require notification to the Congressional intelligence committees or an order from the Foreign Intelligence Surveillance Court? If no, please explain why.
  • The National Telecommunications and Information Administration (NTIA) has been holding a series of “Tribal Consultations for input on implementation of the Tribal Broadband Connectivity Program (TBCP),” a program seeded with $1 billion in the “Consolidated Appropriations Act, 2021” (P.L. 116-260).
    • In a letter, the NTIA explained:
      • The Act directs NTIA to make grants available to eligible entities within short time frames. NTIA is committed to holding consultation sessions expeditiously to ensure that your input informs the new grant program prior to the application process. In accordance with Commerce’s tribal consultation policy, I am inviting you and/or a tribal representative to participate in the virtual National Tribal Consultation to provide your advice and insights as NTIA staff are working through the critical issues related to the program.
    • In its presentation on the TBCP, the NTIA explained the provisions in the Consolidated Appropriations Act, 2021:
      • Section 905(c)(5) stipulates the following eligible uses of grant funds:
        • broadband infrastructure deployment, including support for the establishment of carrier-neutral submarine cable landing stations;
        • affordable broadband programs, including—–providing free or reduced-cost broadband service; and –preventing disconnection of existing broadband service;
        • distance learning;
        • telehealth;
        • digital inclusion efforts; and
        • broadband adoption activities.
      • Section 905(c)(6) caps the amount of grand funds to be used for administrative expenses:
        • An eligible entity may use not more than 2 percent of grant funds received under this subsection for administrative purposes.
      • Section 905(c)(8) provides information about broadband infrastructure deployment:
        • In using grant funds received under this subsection for new construction of broadband infrastructure, an eligible entity shall prioritize projects that deploy broadband infrastructure to unserved households.
      • Section 905(c)(3)(A) mandates that grant funds are awarded on an equitable basis:
      • The amounts appropriated under subsection (b)(1) shall be made available to eligible entities on an equitable basis, and not less than 3 percent of those amounts shall be made available for the benefit of Native Hawaiians.
  • The Department of Health and Human Services (HHS) issued an “Artificial Intelligence (AI)” that establishes an AI Council “to support AI governance, strategy execution, and development of strategic AI priorities across the enterprise…[and] has complementary objectives to:
    • Communicate and champion the Department’s AI vision and ambition
    • Execute and govern the implementation of the enterprise AI strategy and key strategic priorities to scale AI across the Department
    • HHS further explained:
      • To achieve HHS’s ambition, this enterprise AI strategy will set forth an approach and focus areas intended to encourage and enable Department-wide familiarity, comfort, and fluency with AI technology and its potential (AI adoption), the application of best practices and lessons learned from piloting and implementing AI capabilities to additional domains and use cases across HHS (AI scaling), and increased speed at which HHS adopts and scales AI (AI acceleration).
      • Ultimately, this strategy is the first step towards transforming HHS into an AI fueled enterprise. This strategy lays the foundation upon which the AI Council can use to drive change across the Department by encouraging the application of AI to promote advances in the sciences, public health, and social services—improving the quality of life for all Americans.
  • The New York State Department of Financial Services (NYDFS) issued “a new Cyber Insurance Risk Framework…[that] outlines industry best practices for New York-regulated property/casualty insurers that write cyber insurance to effectively manage their cyber insurance risk.” The NYDFS claimed the framework “is the first guidance by a U.S. regulator on cyber insurance” in its press release. NYDFS asserted:
    • The Framework is a result of DFS’s ongoing dialogue with the insurance industry and experts on cyber insurance, including meetings with insurers, insurance producers, cyber experts, and insurance regulators across the U.S. and Europe.  Building on DFS’s longstanding work fostering a strong and resilient insurance market that protects New Yorkers, the Framework furthers DFS’s commitment to improving cybersecurity for consumers and the industry.  DFS’s first-in-the-nation Cybersecurity Regulation took effect in March 2017.  In 2019, DFS was also the first financial services regulator to create a Cybersecurity Division to oversee all aspects of its cybersecurity regulation and policy.
    • The NYDFS claimed:
      • The growing risk makes cyber insurance protection more important than ever, while at the same time creating new challenges for insurers managing that risk.  DFS advises New York-regulated property/casualty insurers offering cyber insurance to establish a formal strategy for measuring cyber insurance risk that is directed and approved by its board or other governing entity.  The strategy should be proportionate with each insurer’s risk based on the insurer’s size, resources, geographic distribution, and other factors. Insurers are encouraged to incorporate the following best practices into their risk strategy:
      • Manage and eliminate exposure to “silent” cyber insurance risk, which results from an insurer’s obligation to cover loss from a cyber incident under a policy that does not explicitly mention cyber incidents;
      • Evaluate systemic risk, including the impact of catastrophic cyber events on third party service providers like the recently discovered SolarWinds supply chain attack;
      • Rigorously measure insured risk by using a data-driven approach to assess potential gaps and vulnerabilities in insureds’ cybersecurity;
      • Educate insureds and insurance producers about the value of cybersecurity measures and the need for, benefits of, and limitations to cyber insurance;
      • Obtain cybersecurity expertise through strategic recruiting and hiring practices; and
      • Require notice to law enforcement in the event of a cyber attack.
  • The National Counterintelligence and Security Center (NCSC) published a fact sheet titled “China’s Collection Of Genomic And Other Healthcare Data From  America: Risks To Privacy And U.S. Economic And National Security.” The NCSC stated:
    • Would you want your DNA or other healthcare data going to an authoritarian regime with a record of exploiting DNA for repression and surveillance? For years, the People’s Republic of China (PRC) has collected large healthcare data sets from the U.S. and nations around the globe, through both legal and illegal means, for purposes only it can control. While no one begrudges a nation conducting research to improve medical treatments, the PRC’s mass collection of DNA at home has helped it carry out human rights abuses against domestic minority groups and support state surveillance. The PRC’s collection of healthcare data from America poses equally serious risks, not only to the privacy of Americans, but also to the economic and national security of the U.S.
    • The NCSC identified the “Implications for Privacy and U.S. National Security:”
      • China’s access to U.S. healthcare and genomic data poses serious privacy and national security risks to the U.S.
        • Through its cyber intrusions in recent years, the PRC has already obtained the Personal Identifying Information (PII) of much of the U.S. population.
        • Recent breaches attributed to the PRC government or to cyber actors based in China include the theft of personnel records of roughly 21 million individuals from the U.S. Office of Personnel Management; the theft from Marriott hotels of roughly 400 million records; the theft of data from Equifax on roughly 145 million people; and the theft of data from Anthem on roughly 78 million people.
      • Furthermore, under the PRC’s national security laws, Chinese companies are compelled to share data they have collected with the PRC government. Article 7 of China’s 2017 National Intelligence Law, for instance, mandates that all Chinese companies and citizens shall support, assist, and cooperate with Chinese national intelligence efforts, and guard the secrecy of any national intelligence work that they are aware of. There is no mechanism for Chinese companies to refuse their government’s requests for data.
      • The combination of stolen PII, personal health information, and large genomic data sets collected from abroad affords the PRC vast opportunities to precisely target individuals in foreign governments, private industries, or other sectors for potential surveillance, manipulation, or extortion.
        • For instance, vulnerabilities in specific individuals revealed by genomic data or health records could be used to help target these individuals. Data associated with an embarrassing addiction or mental illness could be leveraged for blackmail. Combine this information with stolen credit data indicating bankruptcy or major debt and the tools for exerting leverage increase. Such data sets could help the PRC not only recruit individuals abroad, but also act against foreign dissidents.
    • The NCSC also named the “Economic Implications for the United States:”
      • Aside from these immediate privacy risks, China’s access to U.S. health and genomic data poses long-term economic challenges for the United States.
      • The PRC’s acquisition of U.S. healthcare data is helping to fuel China’s Artificial Intelligence and precision medicine industries, while the PRC severely restricts U.S. and other foreign access to such data from China, putting America’s roughly $100 billion biotech industry at a disadvantage.
      • Over time, this dynamic could allow China to outpace U.S. biotech firms with important new drugs and health treatments and potentially displace American firms as global biotech leaders.
      • Although new medicines coming out of China could benefit U.S. patients, America could be left more dependent on Chinese innovation and drug development for its cures, leading to a transfer of wealth, co-opting of new businesses and greater job opportunities in China.
  • The New York University Stern Center for Business and Human Rights (Center) issued a report titled “False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives” that concludes “[e]ven anecdotal evidence of supposed bias tends to crumble under close examination.” The Center stated:
    • Conservatives commonly accuse the major social media companies of censoring the political right. In response to Twitter’s decision on January 8, 2021, to exclude him from the platform, then-President Donald Trump accused the company of “banning free speech” in coordination with “the Democrats and Radical Left.”
    • This accusation—that social media platforms suppress conservatives— riles a Republican base that has long distrusted the mainstream media and is prone to seeing public events as being shaped by murky liberal plots. On a policy level, the bias claim serves as a basis for Republican attacks on Section 230 of the Communications Decency Act, the federal law that protects platforms from liability associated with user posts and content moderation decisions.
    • But the claim of anti-conservative animus is itself a form of disinformation: a falsehood with no reliable evidence to support it. No trustworthy large-scale studies have determined that conservative content is being removed for ideological reasons or that searches are being manipulated to favor liberal interests.
    • The Center offered these recommendations:
      • For the social media industry:
        • 1) Provide greater disclosure for content moderation actions. The platforms should give an easily under- stood explanation every time they sanction a post or account, as well as a readily available means to appeal enforcement actions. Greater transparency—such as that which Twitter and Facebook offered when they took action against President Trump in January—would help to defuse claims of political bias, while clarifying the boundaries of acceptable user conduct.
        • 2) Offer users a choice among content moderation algorithms. Users would have greater agency if they were offered a menu of choices among algorithms. Under this system, each user would be given the option of retaining the existing moderation algorithm or choosing one that screens out harmful content more vigorously. The latter option also would provide enhanced engagement by human moderators operating under more restrictive policies. If users had the ability to select from among several systems, they would be empowered to choose an algorithm that reflects their values and preferences.
        • 3) Undertake more vigorous, targeted human moderation of influential accounts. To avoid high-profile moderation mistakes, the platforms should significantly increase the number of full-time employees working directly for them who would help to create a more rigorous human-led moderation channel for the most influential accounts. To supervise this and other important issues related to policing content, we recommend that the platforms each hire a senior executive—a content overseer—who reports directly to the CEO or COO.
        • 4) Release more data for researchers. More granular disclosure would allow academics and civil society researchers to identify enforcement patterns, such as whether content is being removed for ideological reasons. This greater transparency should include the nature of any content that is removed, the particular rule(s) a post violated, how the platform became aware of noncompliance (user report versus algorithmic moderation), and how any appeals were resolved.
      • For the Biden administration:
        • 5) Pursue a constructive reform agenda for social media. This will require the federal government to press Facebook, Google, and Twitter to improve content policies and their enforcement, even as the government pursues pending antitrust lawsuits against Facebook and Google. The industry, for its part, must strive with urgency to do a better job of protecting users and society at large from harmful content—progress that can’t wait for the resolution of what might be years-long antitrust court battles.
        • 6) Work with Congress to update Section 230. The controversial law should be amended so that its liability shield is conditional, based on social media companies’ acceptance of a range of new responsibilities related to policing content. One of the new platform obligations could be ensuring that algorithms involved in content ranking and recommendation not favor sensationalistic or unreliable material in pursuit of user engagement.
        • 7) Create a new Digital Regulatory Agency. The false claim of anti-conservative bias has contributed to widespread distrust of the platforms’ willingness and ability to govern their sites. A new independent authority, charged with enforcing the responsibilities of a revised Section 230, could begin to rebuild that eroded trust. As an alternative, expanded jurisdiction and funding for social media oversight could be directed to an existing agency such as the Federal Trade Commission or Federal Communications Commission.

Coming Events

  • The House Judiciary Committee’s Antitrust, Commercial, and Administrative Law Subcommittee will hold a hearing titled “Justice Restored: Ending Forced Arbitration and Protecting Fundamental Rights” on 11 February.
  • The Federal Communications Commission’s (FCC) acting Chair Jessica Rosenworcel will hold a virtual Roundtable on Emergency Broadband Benefit Program on 12 February “a new a program that would enable eligible households to receive a discount on the cost of broadband service and certain connected devices during the COVID-19 pandemic.” The FCC also noted “[i]n the Consolidated Appropriations Act of 2021, Congress appropriated $3.2 billion” for the program.
  • On 17 February, the Federal Communications Commission (FCC) will hold an open meeting, its first under acting Chair Jessica Rosenworcel, with this tentative agenda:
    • Presentation on the Emergency Broadband Benefit Program. The Commission will hear a presentation on the creation of an Emergency Broadband Benefit Program. Congress charged the FCC with developing a new $3.2 billion program to help Americans who are struggling to pay for internet service during the pandemic.
    • Presentation on COVID-19 Telehealth Program. The Commission will hear a presentation about the next steps for the agency’s COVID-19 Telehealth program. Congress recently provided an additional $249.95 million to support the FCC’s efforts to expand connected care throughout the country and help more patients receive health care safely.
    • Presentation on Improving Broadband Mapping Data. The Commission will hear a presentation on the work the agency is doing to improve its broadband maps. Congress directly appropriated $65 million to help the agency develop better data for improved maps.
    • Addressing 911 Fee Diversion. The Commission will consider a Notice of Proposed Rulemaking that would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the Commission to take action to help address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911. (PS Docket Nos. 20-291, 09-14)
    • Implementing the Secure and Trusted Communications Networks Act. The Commission will consider a Third Further Notice of Proposed Rulemaking that proposes to modify FCC rules consistent with changes that were made to the Secure and Trusted Communications Networks Act in the Consolidated Appropriations Act, 2021. (WC Docket No. 18-89)
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by cottonbro from Pexels

Further Reading, Other Developments, and Coming Events (26, 27, and 28 January 2021)

Further Reading

  • President Biden’s Tech To-Do List” By Shira Ovide — The New York Times. Another survey of the pressing tech issues President Joe Biden and his Administration will grapple with.
  • Trying to improve remote learning? A refugee camp offers some surprising lessons” By Javeria Salman — The Hechinger Report. An organization that is helping refugee children advises that digital literacy is the necessary first step in helping all children have positive online learning experiences (assuming of course they have devices and internet access). This means more than being adept with Instagram, TikTok, and Snapchat. They also suggest that children work on projects as opposed to busy work.
  • Silicon Valley Takes the Battlespace” By Jonathan Guyer — The American Prospect. A company funded, in part, by former Google CEO Eric Schmidt, Rebellion Defense, landed two members on then President-elect Joe Biden’s official transition team, causing some to wonder about the group. This starts up writes artificial intelligence (AI) with defense industry applications, among other products. Schmidt chairs the National Security Commission on Artificial Intelligence and is widely seen as a bridge between Washington and Silicon Valley. Some see the rise of this company as the classic inside the Beltway tale of blurring interests and capitalizing on connections and know how.
  • The fight to make Netflix and Hulu pay cable fees” By Adi Robertson — The Verge. Municipalities are suing platforms like Netflix, Hulu, Dish Network, DirecTV and others, claiming they are not paying the franchise fees and quarterly fees traditional cable companies have been subject to for the use of the localities’ rights of way and broadband service. The companies are, of course, arguing they are not subject to these laws because they are not cable companies. There have been a host of such suits filed throughout the United States (U.S.) and bear watching.
  • Twitter’s misinformation problem is much bigger than Trump. The crowd may help solve it.” By Elizabeth Dwoskin — The Washington Post. Sounds like Twitter is going the route of Wikipedia with a pilot in which volunteers would fact check and provide context to problematic content. Perhaps this helps address the problems posed by social media platforms.
  • Biden’s clean up of Silicon Valley poses a problem for Scott Morrison” By Harley Dennett — The Canberra Times. The concern down under is that the Biden Administration will press the Morrison government into weakening the “Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020” that “establishes a mandatory code of conduct to help support the sustainability of the Australian news media sector by addressing bargaining power imbalances between digital platforms and Australian news businesses” according to the Explanatory Memorandum. Doing so would please Google, Facebook, and others, supposedly making them more amenable to the coming policy changes Democrats want to unleash on tech companies. It remains to be seen what the Biden Administration would get in return.
  • China turbocharges bid to discredit Western vaccines, spread virus conspiracy theories” By Gerry Shih — The Washington Post. In light of more effective vaccines developed by United States (U.S.) companies and a World Health Organization (WHO) team in Wuhan investigating, the People’s Republic of China (PRC) has kicked its propaganda campaign into high gear. All sorts of unsubstantiated claims are being made about the safety and effectiveness of the U.S. vaccines and the source of COVID-19 (allegedly from the U.S.)
  • A Chinese hacking group is stealing airline passenger details” By Catalin Cimpanu — ZDNet.  Hackers associated with the People’s Republic of China (PRC) apparently hacked into one of the companies that generates Passenger Name Records (PNR) that details who flies where and when. There are many uses for these data, including identifying likely foreign intelligence operatives such as Central Intelligence Agency (CIA) agents stationed abroad.
  • Biden Has a Peloton Bike. That Raises Issues at the White House.” By Sheryl Gay Stolberg — The New York Times. This is the level of coverage of the new President. His predecessor used an insecure iPhone that other nations’ intelligence agencies were likely tapping and was famously careless with classified information. And yet, President Joe Biden’s Peloton worries cybersecurity experts. Buried inside the story are the revelations that during the Digital Age, Presidents present cybersecurity challenges and tailored solutions are found.
  • Ministry of Electronics asks Whatsapp to withdraw changes to privacy policy, disclose data sharing practice” By Bismah Malik — The New Indian Express. India’s Ministry of Electronics and Information Technology (MeitY) is asking WhatsApp to scrap plans to roll out an already delayed change to privacy policies. India is the company’s largest market and has already flexed its muscle against other foreign apps it claimed posed dangers to its people like TikTok. WhatsApp would likely be blocked under a proposed Indian law from moving ahead with its plan to make data people share with WhatsApp business accounts available to Facebook and for advertising. The Data Protection Bill is expected to pass the Parliament his year.
  • WhatsApp Fueled A Global Misinformation Crisis. Now, It’s Stuck In One.” By Pranav Dixit — BuzzFeed News. A nice overview of how WhatsApp and Facebook’s missteps and limited credibility with people resulted in a widely believed misrepresentation about the changes to WhatsApp’s Terms of Service announced earlier this year.
  • Amazon, Facebook, other tech giants spent roughly $65 million to lobby Washington last year” By Tony Romm — The Washington Post. While Amazon and Facebook increased their federal lobbying, Google cut back. It bears note these totals are only for the lobbying these entities are doing directly to the federal government and does not include what they spend on firms and lobbyists in Washington (which is plenty) or their contributions to organizations like the Information Technology Industry Council or the Center for Democracy and Technology (which, again, is a lot.) Let’s also not forget political contributions or fundraising by the leadership and senior employees of these companies and political action committees (PAC). Finally, these totals exclude funds spent in state capitals, and I expect tech companies dropped a ton of cash in places like Sacramento and Olympia last year as major privacy legislation was under consideration. Moreover, this article does not take in whatever the companies are spending in Brussels and other capitals around the world.
  • Google won’t donate to members of Congress who voted against election results” By Ashley Gold — Axios. Speaking of using money to influence the political process, Google has joined other tech companies in pausing donations to Members who voted against certifying President Joe Biden’s victory in the Electoral College (i.e., Senators Ted Cruz (R-TX) and Josh Hawley (R-MO), to name two). We’ll see how long this lasts.
  • FCC’S acting chair says agency reviewing reports of U.S. East Coast internet outages” By Staff — Reuters; “Big Internet outages hit the East Coast, causing issues for Verizon, Zoom, Slack, Gmail” By Rachel Lerman — The Washington Post. On 26 January, there were widespread internet outages on the east coast of the United States (U.S.) that the Federal Communications Commission (FCC) is vowing to investigate. Acting FCC Chair Jessica Rosenworcel tweeted:
    • We have seen reports of internet-related outages on the East Coast, making it difficult for people to work remotely and go to school online. The @FCC Public Safety and Homeland Security Bureau is working to get to the bottom of what is going on.
    • It is not clear where and why the roughly hour long outage occurred, but early fingers are being pointed at Verizon FIOS.
  • Police Say They Can Use Facial Recognition, Despite Bans” By Alfred Ng — The Markup. No one should be surprised that many police departments are reading bans on using facial recognition technology as narrowly as possible. Nevertheless, legislators and advocates are fighting over the interpretations of these recently passed statutes, almost all of which have been put in place by municipalities. Jurisdictions in the United States may also soon choose to address the use of facial recognition technology by businesses.
  • Why Are Moscow and Beijing Happy to Host the U.S. Far-Right Online?” By Fergus Ryan — Foreign Policy. The enemy of my enemy is my friend, supposedly. Hence, extremist right-wingers, white supremacists, and others are making common cause with the companies of the People’s Republic of China and the Russian Federation by moving their websites and materials to those jurisdictions after getting banned by western companies. Given how closely Beijing and Moscow monitor their nations’ internet, this is surely done with the tacit permission of those governments and quite possibly to the same end as their disinformation campaigns: to disrupt the United States and neutralize it as a rival.
  • After Huawei, Europe’s telcos want ‘open’ 5G networks “ By Laurens Cerulus — Politico EU. Europe’s major telecommunications companies, Deutsche Telekom, Telefónica, Vodafone and Orange, have banded together to support and buy Open RAN technology to roll out 5G instead of buying from Ericsson or Nokia who are promising to do it all. The Open RAN would allow for smaller companies to build pieces of 5G networks that would be interchangeable since everyone is working from the same standards. Huawei, of course, has been shut out of many European nations and see the development as more evidence that western nations are ganging up on it.

Other Developments

  • White House Press Secretary Jen Psaki confirmed that President Joe Biden has directed the United Intelligence Community (IC) to investigate and report to him on the SolarWinds breach perpetrated by the Russian Federation’s foreign intelligence service, Sluzhba vneshney razvedki Rossiyskoy Federatsii (SVR). Thus far, it appears that many United States (U.S.) agencies and private sector entities were quietly breached in early 2020 and then surveilled for months until FireEye, a private sector cybersecurity company, divulged it had been breached. Given former President Donald Trump’s aversion to acknowledging the malicious acts of Russia, it seemed likely the Biden Administration would start the U.S. response. Interestingly, the Biden Administration is extending two nuclear weapons control treaties at the same time it seeks to undertake this assessment of Russian hacking. And, whatever the results of the assessment, experts are in agreement that the Biden Administration would seem to have few good options to retaliate and deter future action.
    • At a 21 January press briefing, Psaki stated
      • I can confirm that the United States intends to seek a five-year extension of New START, as the treaty permits.  The President has long been clear that the New START Treaty is in the national security interests of the United States.  And this extension makes even more sense when the relationship with Russia is adversarial, as it is at this time.
      • New START is the only remaining treaty constraining Russian nuclear forces and is an anchor of strategic stability between our two countries.
      • And to the other part of your question: Even as we work with Russia to advance U.S. interests, so too we work to hold Russia to account for its reckless and adversarial actions.  And to this end, the President is also issuing a tasking to the intelligence community for its full assessment of the SolarWinds cyber breach, Russian interference in the 2020 election, its use of chemical weapons against opposition leader Alexei Navalny, and the alleged bounties on U.S. soldiers in Afghanistan.
  • A group of 40 organizations urged President Joe Biden “to avoid appointing to key antitrust enforcement positions individuals who have served as lawyers, lobbyists, or consultants for Amazon, Apple, Facebook, and Google” in a letter sent before his inauguration. Instead, they encouraged him “to appoint experienced litigators or public servants who have recognized the dangers of, rather than helped to exacerbate, these corporations’ market power.” They closed the letter with this paragraph:
    • With your historic election, and the groundbreaking mandate Americans have entrusted you with, you face the challenge of not only rebuilding the country, but also rebuilding trust in government. We believe that appointing antitrust enforcers with no ties to dominant corporations in the industries they will be tasked with overseeing –particularly in regard to the technology sector –willhelp re-establish public trust in government at a critically important moment in our country’s history. We look forward to working with your administration to ensure powerful technology corporations are held accountable for wrongdoing in the months of years ahead.
    • The signatories include:
      • Public Citizen
      • American Economic Liberties Project
      • Open Markets Institute
      • Revolving Door Project
  • The National Security Agency (NSA) issued an advisory “Adopting Encrypted DNS in Enterprise Environments,” “explaining the benefits and risks of adopting the encrypted domain name system (DNS) protocol, DNS over HTTPs (DoH), in enterprise environments.” This advisory is entirely voluntary and does not bind any class of entities. Moreover, it is the latest in a series of public advisories that has seen the heretofore secretive NSA seek to rival the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) in advising the owners and operators of cyber infrastructure. The NSA explained:
    • Use of the Internet relies on translating domain names (like “nsa.gov”) to Internet Protocol addresses. This is the job of the Domain Name System (DNS). In the past, DNS lookups were generally unencrypted, since they have to be handled by the network to direct traffic to the right locations. DNS over Hypertext Transfer Protocol over Transport Layer Security (HTTPS), often referred to as DNS over HTTPS (DoH), encrypts DNS requests by using HTTPS to provide privacy, integrity, and “last mile” source authentication with a client’s DNS resolver. Itis useful to prevent eavesdropping and manipulation of DNS traffic.While DoH can help protect the privacy of DNS requests and the integrity of responses, enterprises that use DoH will lose some of the control needed to govern DNS usage within their networks unless they allow only their chosen DoH resolver to be used. Enterprise DNS controls can prevent numerous threat techniques used by cyber threat actors for initial access, command and control, and exfiltration.
    • Using DoH with external resolvers can be good for home or mobile users and networks that do not use DNS security controls. For enterprise networks, however, NSA recommends using only designated enterprise DNS resolvers in order to properly leverage essential enterprise cybersecurity defenses, facilitate access to local network resources, and protect internal network information. The enterprise DNS resolver may be either an enterprise-operated DNS server or an externally hosted service. Either way, the enterprise resolver should support encrypted DNS requests, such as DoH, for local privacy and integrity protections, but all other encrypted DNS resolvers should be disabled and blocked. However, if the enterprise DNS resolver does not support DoH, the enterprise DNS resolver should still be used and all encrypted DNS should be disabled and blocked until encrypted DNS capabilities can be fully integrated into the enterprise DNS infrastructure.
  • The United States (U.S.) Government Accountability Office (GAO) has sent a report to the chair of the House Oversight Committee on its own initiative that “examines: (1) the Department of Defense’s (DOD) efforts to revise the process for identifying and protecting its critical technologies, and (2) opportunities for DOD’s revised process to inform U.S. government protection programs.” The GAO stated:
    • DOD’s critical technologies—including those associated with an acquisition program throughout its lifecycle or those still early in development—are DOD funded efforts that provide new or improved capabilities necessary to maintain the U.S. technological advantage. For the purposes of this report, we refer to these as critical acquisition programs and technologies. Also for the purposes of this report, U.S. government protection programs are those GAO previously identified across the federal government that are designed to protect critical technologies such as the Arms Export Control System, National Industrial Security Program, and the Committee on Foreign Investment in the U.S
    • Critical technologies are pivotal to maintaining the U.S. military advantage and, as such, are a frequent target for unauthorized access by adversaries such as through theft, espionage, illegal export, and reverse engineering. DOD has long recognized the need to effectively identify and ensure the consistent protection of these technologies from adversaries, but past efforts have not been fully successful. Recent efforts to revise its process for identifying and protecting its critical acquisition programs and technologies—led by DOD’s Protecting Critical Technology Task Force— offer some improvements.
    • However, DOD can further strengthen its revised process by determining the approach for completing key steps. These steps include ensuring its critical acquisition programs and technologies list is formally communicated to all relevant internal entities and other federal agencies, such as the Department of the Treasury as chair of the Committee on Foreign Investment in the United States, to promote a consistent understanding of what DOD deems critical to protect. They also include developing appropriate metrics that DOD program offices as well as organizations—such as the military departments and Under Secretary of Defense level offices—can use to assess the implementation and sufficiency of the assigned protection measures. Finally, DOD has not yet designated an organization to oversee critical technology protection efforts beyond 2020. As DOD works to develop a policy for its revised process, addressing these issues will not only help improve and ensure continuity in DOD’s protection efforts, but also help ensure government- wide protection efforts are better coordinated as called for in the 2020 National Strategy for Critical and Emerging Technologies.
    • The GAO made three recommendations to the DOD:
      • The Secretary of Defense should direct the Deputy Secretary of Defense in conjunction with the Protecting Critical Technology Task Force to determine a process for formally communicating future critical acquisition programs and technologies lists to all relevant DOD organizations and federal agencies. (Recommendation 1)
      • The Secretary of Defense should direct the Deputy Secretary of Defense in conjunction with the Protecting Critical Technology Task Force to identify, develop, and periodically review appropriate metrics to assess the implementation and sufficiency of the assigned protection measures. (Recommendation 2)
      • The Secretary of Defense should direct the Deputy Secretary of Defense in conjunction with the Protecting Critical Technology Task Force to finalize the decision as to which DOD organization will oversee protection efforts beyond 2020. (Recommendation 3)
  • The National Telecommunications and Information Administration (NTIA) “under sponsorship of and in collaboration with the Department of Defense (DOD) 5G Initiative” “issued a Notice of Inquiry (NOI)…to explore a “5G Challenge” aiming to accelerate the development of an open source 5G ecosystem that can support DOD missions.” The NTIA explained:
    • A key innovation in 5G that is becoming more pervasive in the larger 5G ecosystem is the trend toward “open 5G” architectures that emphasize open interfaces in the network stack. NTIA, under sponsorship of and in collaboration with the DOD 5G Initiative, is seeking comments and recommendations from all interested stakeholders to explore the creation of a 5G Challenge that would accelerate the development of the open 5G stack ecosystem in support of DOD missions.
    • For the purposes of this Notice, NTIA has organized these questions into three broad categories: (1) Challenge structure and goals; (2) incentives and scope; and (3) timeframe and infrastructure support. NTIA seeks public input on any and/or all of these three categories.
  • The Court of Justice for the European Union’s (CJEU) Advocate General has released his opinion in a case on whether a different data protection authority (DPA) from the lead agency in a case may also bring actions in its court system. The General Data Protection Regulation (GDPR) has a mechanism that organizes the regulation of data protection in that one agency, often the first to act, becomes the lead supervisory authority (LSA) and other DPAs must follow its lead. Most famously, Ireland’s Data Protection Commission (DPC) has been the LSA for the action Maximillian Schrems brought against Facebook that led to the demise of two adequacy agreements between the United States (U.S.) and the European Union (EU). In each case, the DPC was the LSA. The CJEU is not obligated to follow the Advocate General’s opinions, but they frequently prove persuasive. In any event, the Advocate General found DPAs may, under some circumstances, bring cases for cross border infringement even if another DPA is LSA. Advocate General Michal Bobek summarized the facts of the case:
    • In September 2015, the Belgian data protection authority commenced proceedings before the Belgian courts against several companies belonging to the Facebook group (Facebook), namely Facebook INC, Facebook Ireland Ltd, which is the group’s main establishment in the EU, and Facebook Belgium BVBA (Facebook Belgium). In those proceedings, the data protection authority requested that Facebook be ordered to cease, with respect to any internet user established in Belgium, to place, without their consent, certain cookies on the device those individuals use when they browse a web page in the Facebook.com domain or when they end up on a third party’s website, as well as to collect data by means of social plugins and pixels on third party websites in an excessive manner. In addition, it requested the destruction of all personal data obtained by means of cookies and social plugins, about each internet user established in Belgium.
    • The proceedings at issue are at present in progress before the Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) with however their scope being limited to Facebook Belgium, as that court previously established that it had no jurisdiction with regard to the actions against Facebook INC and Facebook Ireland Ltd. In this context, Facebook Belgium asserts that, as of thed ate on which the General Data Protection Regulation (GDPR)1has become applicable,the Belgian data protection authority has lost competence to continue the judicial proceedings at issue against Facebook. It contends that, under the GDPR, only the data protection authority of the State of Facebook’s main establishment in the EU (the so-called ‘lead’ data protection authority in the EU for Facebook), namely the Irish Data Protection Commission, is empowered to engage in judicial proceedings against Facebook for infringements of the GDPR in relation to cross-border data processing.
    • Bobek summed up the legal questions presented to the CJEU:
      • Does the GDPR permit a supervisory authority of a Member State to bring proceedings before a court of that State for an alleged infringement of that regulation with respect to cross-border data processing, where that authority is not the lead supervisory authority with regard to that processing?
      • Or does the new ‘one-stop-shop’ mechanism, heralded as one of the major innovations brought about by the GDPR, prevent such a situation from happening? If a controller were called upon to defend itself against a legal challenge concerning cross-border data processing brought by a supervisory authority in a court outside the place of the controller’s main establishment, would that be ‘one-stop-too-many’ and therefore incompatible with the new GDPR mechanism?
    • Bobek made the following findings:
      • [F]irst, that it transpires from the wording of the GDPR that the lead data protection authority has a general competence over cross-border data processing, including the commencement of judicial proceedings for the breach of the GDPR, and, by implication, the other data protection authorities concerned enjoy a more limited power to act in that regard.
      • Second, the Advocate General recalls that the very reason for the introduction of the one-stop-shop mechanism enshrined in the GDPR, whereby a significant role has been given to the lead data protection authority and cooperation mechanisms have been set up to involve other data protection authorities, was to address certain shortcomings resulting from the former legislation. Indeed, economic operators used to be required to comply with the various sets of national rules implementing that legislation, and to liaise, at the same time, with all the national data protection authorities, which proved to be costly, burdensome and time-consuming for those operators, and an inevitable source of uncertainty and conflicts for them and their customers.
      • Third, the Advocate General stresses that the lead data protection authority cannot be deemed as the sole enforcer of the GDPR in cross-border situations and must, in compliance with the relevant rules and time limits provided for by the GDPR, closely cooperate with the other data protection authorities concerned, the input of which is crucial in this area.
  • The United States (U.S.) Department of Defense added more companies from the People’s Republic of China (PRC) to the list of those associated with or controlled by the Chinese Communist Party or the People’s Liberation Army (PLA) “in accordance with the statutory requirement of Section 1237 of the National Defense Authorization Act for Fiscal Year 1999.” The previous lists were released last year (here, here and here.) This designation will almost certainly make doing business in the United States (U.S.) and elsewhere more difficult.
    • The first part of Section 1237 grants the President authority to “exercise International Emergency Economic Powers Act (IEEPA) authorities (other than authorities relating to importation) without regard to section 202 of the IEEPA (50 U.S.C. 1701) in the case of any commercial activity in the United States by a person that is on the list.” IEEPA grants the President sweeping powers to prohibit transactions and block property and property interests for nations and other groups subject to an IEEPA national emergency declaration. Consequently, those companies identified by the DOD on a list per Section 1237 could be blocked and prohibited from doing business with U.S. entities and others and those that do business with such Chinese companies could be subject to enforcement actions by the U.S. government.
    • The statute defines a “Communist Chinese military company” as “any person identified in the Defense Intelligence Agency publication numbered VP-1920-271-90, dated September 1990, or PC-1921-57-95, dated October 1995, and any update of those publications for the purposes of this section; and any other person that is owned or controlled by the People’s Liberation Army; and is engaged in providing commercial services, manufacturing, producing, or exporting.” Considering that the terms “owned” and “controlled” are not spelled out in this section, the executive branch may have very wide latitude in deeming a non-Chinese company as owned or controlled and therefore subject to the President’s use of IEEPA powers. Moreover, since the President already has the authority to declare an emergency and then use IEEPA powers, this language would seem to allow the President to bypass any such declaration and immediately use such powers, except those regarding importation, against any Chinese entities identified on this list by the Pentagon.
  • A group of 13 House Democrats wrote Attorney General designate Merrick Garland asking that the Biden Administration “to withdraw from the United States (U.S.) federal government’s lawsuit against the State of California over its net neutrality law as one of the first actions after inauguration.” The Trump Administration had sued California after a measure became law in 2018, mandating net neutrality there in the wake of the Federal Communications Commission’s (FCC) rollback of federal net neutrality. The Members argued:
    • In September 2018, then-Governor Jerry Brown signed into law SB 822, the strongest net neutrality law in the country. The Trump Department of Justice (DOJ) sued to overturn California’s law hours later, and associations of telecommunications providers sued within days. Parties to the case agreed to put the case on hold until Mozilla v. FCC was resolved. In that case, the Court of Appeals for the D.C. Circuit vacated the part of the Federal Communications Commission (FCC)’s 2018 Restoring Internet Order (RIF) that preempted state net neutrality laws.
    • The arguments of the Trump DOJ and telecommunications associations in U.S. v. California extend further than even the FCC’s RIF and have implications on the ability of California and other states to regulate many communications and technology policy issues.
    • The Eastern District of California has scheduled a hearing in U.S. v. California for a request for an injunction on January 26, 2021. It is for these reasons, we ask that the federal DOJ withdraw from U.S. v. California shortly after President-elect Biden is inaugurated.
  • On its first day in power, the Biden Administration issued its “National Strategy for the COVID-19 Response and Pandemic Preparedness.” In the cover letter, President Joe Biden stated:
    • For the past year, we could not turn to the federal government for a national plan to answer prayers with action — until today. In the following pages, you will find my Administration’s national strategy to beat the COVID-19 pandemic. It is a comprehensive plan that starts with restoring public trust and mounting an aggressive, safe, and effective vaccination campaign. It continues with the steps we know that stop the spread liked expanded masking, testing, and social distancing. It’s a plan where the federal government works with states, cities, Tribal communities, and private industry to increase supply and administer testing and the vaccines that will help reopen schools and businesses safely. Equity will also be central to our strategy so that the communities and people being disproportionately infected and killed by the pandemic receive the care they need and deserve.
    • Given the numerous cyber-attacks and intrusions throughout the pandemic and growing risks to the entire vaccine supply chain, the President asked the Director of National Intelligence Avril Haines to “lead an assessment of ongoing cyber threats and foreign interference campaigns targeting COVID-19 vaccines and related public health efforts” in order to “counter any threat to the vaccination program.” The Administration stated “[t]he U.S. Government will take steps to address cyber threats to the fight against COVID-19, including cyber attacks on COVID-19 research, vaccination efforts, the health care systems and the public health infrastructure.”
    • Specifically, the strategy requires the following:
      • To assist in the Federal Government’s efforts to provide warning of pandemics, protect our biotechnology infrastructure from cyber attacks and intellectual property theft, identify and monitor biological threats from states and non-state actors, provide validation of foreign data and response efforts, and assess strategic challenges and opportunities from emerging biotechnologies, the Director of National Intelligence shall:
        • (i) Review the collection and reporting capabilities in the United States Intelligence Community (IC) related to pandemics and the full range of high-consequence biological threats and develop a plan for how the IC may strengthen and prioritize such capabilities, including through organizational changes or the creation of National Intelligence Manager and National Intelligence Officer positions focused on biological threats, global public health, and biotechnology;
        • (ii) Develop and submit to the President, through the Assistant to the President for National Security Affairs (APNSA) and the COVID-19 Response Coordinator, a National Intelligence Estimate on
          • (A) the impact of COVID-19 on national and economic security; and
          • (B) current, emerging, reemerging, potential, and future biological risks to national and economic security; and
        • (iii)  In coordination with the Secretary of State, the Secretary of Defense, the Secretary of Health and Human Services (HHS), the Director of the Centers for Disease Control and Prevention (CDC), the Administrator of United States Agency for International Development (USAID), the Director of the Office of Science and Technology Policy, and the heads of other relevant agencies, promptly develop and submit to the APNSA an analysis of the security implications of biological threats that can be incorporated into modeling, simulation, course of action analysis, and other analyses.
  • Before the end of the Trump Administration, the Departments of State and Treasury imposed sanctions on a group of Russians for taking part in “a Russia-linked foreign influence network associated with Andrii Derkach, who was designated on September 10, 2020, pursuant to Executive Order (E.O.) 13848 for his attempt to influence the 2020 U.S. Presidential election” according to the Trump Administration Department of State press release. These sanctions emanate from a narrative pushed by Derkach, a likely Russian agent, that the Biden family were engaged in corrupt dealings in Ukraine. Allies of the Trump Campaign pushed this narrative, too, until it failed to gain traction in the public sphere. It is little wonder the last administration waited until the tail end of the Trump presidency to levy such sanctions. State went on to explain:
    • Former Ukraine Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current member of the Ukrainian parliament Oleksandr Dubinsky, have publicly appeared with or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent or unsubstantiated allegations involving a U.S. political candidate.  They have made repeated public statements advancing malicious narratives that U.S. Government officials have engaged in corrupt dealings in Ukraine.  These efforts and narratives are consistent with or in support of Derkach’s objectives to influence the 2020 U.S. presidential election.  As such, these individuals have been designated pursuant to E.O. 13848 for having directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign influence in an attempt to undermine the 2020 U.S. elections.
    • NabuLeaks, Era-Media, Only News, and Skeptik TOV are media front companies in Ukraine that disseminate false narratives at the behest of Derkach’s and his associates.  They are being designated pursuant to E.O. 13848 for being owned or controlled by Derkach or his media team.  Today’s action also includes the designation of Petro Zhuravel, Dmytro Kovalchuk, and Anton Simonenko for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, Derkach.
    • Additionally, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) “took additional action against seven individuals and four entities that are part of a Russia-linked foreign influence network associated with Andrii Derkach” according to the agency’s press release. OFAC stated “[a]s a result of today’s designations, all property and interests in property of these targets that are subject to U.S. jurisdiction are blocked, and U.S. persons are generally prohibited from engaging in transactions with them. Additionally, any entities 50 percent or more owned by one or more designated persons are also blocked.”
  • The United States (U.S.) Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) published “a draft of the Trusted Internet Connections (TIC) 3.0 Remote User Use Case and the draft National Cybersecurity Protection System (NCPS) Cloud Interface Reference Architecture (NCIRA): Volume 2.” The agency remarked in its press release:
    • The TIC initiative was launched under former President George W. Bush to limit the access points to the wider internet federal agencies used based on the logic of physical defense. And so, fewer entry and exit points made for a safer compound. However, over time, this proved problematic, especially as new technology came into use. Consequently, in the aforementioned OMB memorandum, the Trump Administration began a revamp from which these documents flow:
      • To continue to promote a consistent baseline of security capabilities, the Department of Homeland Security (DHS) will define TIC initiative requirements in documentation called TIC Use Cases (refer to Appendix A). TIC Use Case documentation will outline which alternative security controls, such as endpoint and user-based protections, must be in place for specific scenarios in which traffic may not be required to flow through a physical TIC access point. To promote flexibility while maintaining a focus on security outcomes, the capabilities used to meet TIC Use Case requirements may be separate from an agency’s existing network boundary solutions provided by a Trusted Internet Connection Access Provider (TICAP) or Managed Trusted Internet Protocol Services (MTIPS). Given the diversity of platforms and implementations across the Federal Government, TIC Use Cases will highlight proven, secure scenarios, where agencies have met requirements for government-wide intrusion detection and prevention efforts, such as the National Cybersecurity Protection System (including the EINSTEIN suite), without being required to route traffic through a TICAP/MTIPS solution.
    • In the Remote User Use Case, it is explained that
      • The TIC 3.0 Remote User Use Case (Remote User Use Case) defines how network and multi-boundary security should be applied when an agency permits remote users on their network. A remote user is an agency user that performs sanctioned business functions outside of a physical agency premises. The remote user scenario has two distinguishing characteristics:
        • 1. Remote user devices are not directly connected to network infrastructure that is managed and maintained by the agency.
        • 2. Remote user devices are intended for individual use (i.e., not a server).
      • In contrast, when remote user devices are directly connected to local area networks and other devices that are managed and maintained by the agency, it would be considered either an agency campus or a branch office scenario. TIC architectures for agency campus and branch office scenarios are enumerated in the TIC 3.0 Traditional TIC Use Case and the TIC 3.0 Branch Office Use Case respectively.
    • In NCIRA, it is stated:
      • The NCPS Cloud Interface Reference Architecture is being released as two individual volumes. The first volume provides an overview of changes to NCPS to accommodate the collection of relevant data from agencies’ cloud environments and provides general reporting patterns for sending cloud telemetry to CISA. This second volume builds upon the concepts presented in NCPS Cloud Interface Reference Architecture: Volume One and provides an index of common cloud telemetry reporting patterns and characteristics for how agencies can send cloud-specific data to the NCPS cloud-based architecture. Individual cloud service providers (CSPs) can refer to the reporting patterns in this volume to offer guidance on their solutions that allow agencies to send cloud telemetry to CISA in fulfillment of NCPS requirements.
  • The Congressional-Executive Commission on China (CECC) published its “2020 Annual Report” “on human rights and the rule of law in China.” The CECC found that:
    • the Chinese government and Communist Party have taken unprecedented steps to extend their repressive policies through censorship, intimidation, and the detention of people in China for exercising their fundamental human rights. Nowhere is this more evident than in the Xinjiang Uyghur Autonomous Region (XUAR) where new evidence emerged that crimes against humanity—and possibly genocide—are occurring, and in Hong Kong, where the ‘‘one country, two systems’’ frame-work has been effectively dismantled.
    • These policies are in direct violation of China’s Constitution, which guarantees ‘‘freedom of speech, of the press, of assembly, of association, of procession and of demonstration,’’ as well as ‘‘freedom of religious belief.’’ The actions of the Chinese government also contravene both the letter and the spirit of the Universal Declaration of Human Rights; violate its obligations under the Inter-national Covenant on Civil and Political Rights, which the Chinese government has signed but not ratified; and violate the Inter-national Covenant on Economic, Social, and Cultural Rights, ratified in 2001. Further, the Chinese government has abandoned any pretense of adhering to the legally binding commitments it made to the international community when it signed the 1984 Sino-British Joint Declaration on the future of Hong Kong.
    • President and Party General Secretary Xi Jinping has tightened his grip over China’s one-party authoritarian system, and the Party has further absorbed key government functions while also enhancing its control over universities and businesses. Authorities promoted the official ideology of ‘‘Xi Jinping Thought’’ on social media and required Party members, government officials, journalists, and students to study it, making the ideology both pervasive, and for much of the country, mandatory.
    • Regarding freedom of expression, the CECC recommended:
      • Give greater public expression, including at the highest levels of the U.S. Government, to the issue of press freedom in China, condemning: the harassment and detention of both domestic and foreign journalists; the denial, threat of denial, or delay of visas for foreign journalists; and the censorship of foreign media websites. Consistently link press freedom to U.S. interests, noting that censorship and restrictions on journalists and media websites prevent the free flow of information on issues of public concern, including public health and environ-mental crises, food safety problems, and corruption, and act as trade barriers for foreign companies attempting to access the Chinese market. Assess the extent to which China’s treatment of foreign journalists contravenes its World Trade Organization commitments and other obligations.
      • Sustain, and where appropriate, expand, programs that develop and widely distribute technologies that will assist Chinese human rights advocates and civil society organizations in circumventing internet restrictions, in order to access and share content protected under international human rights standards. Continue to maintain internet freedom programs for China at the U.S. Department of State and the United States Agency for Global Media to provide digital security training and capacity-building efforts for bloggers, journalists, civil society organizations, and human rights and internet freedom advocates in China.
      • Raise with Chinese officials, during all appropriate bilateral discussions, the cost to U.S.-China relations and to the Chinese public’s confidence in government institutions that is incurred when the Chinese government restricts political debate, advocacy for democracy or human rights, and other forms of peaceful  political  expression.  Emphasize  that  such  restrictions  violate  international  standards  for  free  expression,  particularly  those  contained  in  Article  19  of  the  International  Covenant  on  Civil  and  Political  Rights  and  Article  19  of  the  Universal  Declaration of Human Rights.
  • The Center for Democracy and Technology (CDT) issued its “Recommendations to the Biden Administration and 117th Congress to Advance Civil Rights & Civil Liberties in the Digital Age” that called for reform to content moderation, election law, privacy, big data, and other policy areas.
  • A United States (U.S.) federal court denied Parler’s request for a preliminary injunction against Amazon Web Services (AWS) after the latter shut down the former’s website for repeated violations of their contract, including the use of the conservative tilting platform during the 6 January 2021 insurrection at the United States Capitol. Parler was essentially asking the court to force AWS to once again host its website while its litigation was pending. The court reviewed Parler’s claims and clarified the scope of the case:
    • In its Complaint, Parler asserts three claims: (1) for conspiracy in restraint of trade, in violation of the Sherman Act, 15 U.S.C. § 1; (2) for breach of contract; and (3) for tortious interference with business expectancy. AWS disputes all three claims, asserting that it is Parler, not AWS, that has violated the terms of the parties’ Agreement, and in particular AWS’s Acceptable Use Policy, which prohibits the “illegal, harmful, or offensive” use of AWS services.
    • It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights, which exist only against a governmental entity, and not against a private company like AWS. And indeed, Parler has not disputed that at least some of the abusive and violent posts that gave rise to the issues in this case violate AWS’s Acceptable Use Policy. This motion also does not ask the Court to make a final ruling on the merits of Parler’s claims. As a motion for a preliminary injunction, before any discovery has been conducted, Parler seeks only to have the Court determine the likelihood that Parler will ultimately prevail on its claims, and to order AWS to restore service to Parler pending a full and fair litigation of the issues raised in the Complaint.
    • However, the court ruled against Parler:
      • Parler has failed to meet the standard set by Ninth Circuit and U.S. Supreme Court precedent for issuance of a preliminary injunction. To be clear, the Court is not dismissing Parler’s substantive underlying claims at this time. Parler has fallen far short, however, of demonstrating, as it must, that it has raised serious questions going to the merits of its claims, or that the balance of hardships tips sharply in its favor. It has also failed to demonstrate that it is likely to prevail on the merits of any of its three claims; that the balance of equities tips in its favor, let alone strongly so; or that the public interests lie in granting the injunction.
  • The United States (U.S.) Department of Commerce’s National Telecommunications and Information Administration (NTIA) issued a statutorily required “National Strategy to Secure 5G Implementation Plan” and Appendices. The NTIA explained:
    • In accordance with the Secure 5G and Beyond Act of 2020, the Executive Branch has developed a comprehensive implementation plan. This implementation will be managed under the leadership of the National Security Council and the National Economic Council, supported by the National Telecommunications and Information Administration (NTIA), and with contributions from and coordination among a wide range of departments and agencies. The implementation plan took into account the 69 substantive comments in response to NTIA’s Request for Comments received from companies, industry associations, and think tanks representing a range of interests and aspects of the telecommunications ecosystem. Consistent with the National Strategy to Secure 5G, the implementation plan encompasses four lines of effort:
      • Line of Effort One: Facilitate Domestic 5G Rollout: The first line of effort establishes a new research and development initiative to develop advanced communications and networking capabilities to achieve security, resilience, safety, privacy, and coverage of 5G and beyond at an affordable cost. Advancement of United States leadership in Secure 5G and beyond systems and applications will be accomplished by enhancing centers of research and development and manufacturing. These efforts will leverage public-private partnerships spanning government, industry, academia, national laboratories, and international allies. This line of effort also intends to identify incentives and options to leverage trusted international suppliers, both to facilitate secure and competitive 5G buildouts, and to ensure the global competitiveness of United States manufacturers and suppliers.
      • Line of Effort Two: Assess Risks to & Identify Core Security Principles of 5G Infrastructure: The second line of effort is oriented toward identifying and assessing risks and vulnerabilities to 5G infrastructure, building on existing capabilities in assessing and managing supply chain risk. This work will also involve the development of criteria for trusted suppliers and the application of a vendor supply chain risk management template to enable security-conscious acquisition decision-making. Several agencies have responsibilities for assessing threats as the United States’ manages risks associated with the global and regional adoption of 5G network technology as well as developing mitigation strategies to combat any identified threats. These threat assessments take into account, as appropriate, requirements from entities such as the Committee on Foreign Investment in the United States (CFIUS), the Executive Order (E.O.) on Establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (Team Telecom), and the Federal Acquisition Security Council (FASC). In addition, this line of effort will identify security gaps in United States and international supply chains and an assessment of the global competitiveness and economic vulnerabilities of United States manufacturers and suppliers. Finally, this set of activities will include working closely with the private sector and other stakeholders to identify, develop, and apply core security principles for 5G infrastructure. These efforts will include leveraging the Enduring Security Framework (ESF), a working group under the Critical Infrastructure Partnership Advisory Council (CIPAC). These emerging security principles will be synchronized with or complementary to other 5G security principles, such as the “Prague Proposals” from the Prague 5G Security Conference held in May 2019.
      • Line of Effort Three: Address Risks to United States Economic and National Security during Development and Deployment of 5G Infrastructure Worldwide: The third line of effort involves addressing the risks to United States economic and national security during the development and deployment of 5G infrastructure worldwide. As a part of this effort, the United States will identify the incentives and policies necessary to close identified security gaps in close coordination with the private sector and through the continuous evaluation of commercial, security, and technological developments in 5G networks. A related activity is the identification of policies that can ensure the economic viability of the United States domestic industrial base, in coordination with the private sector through listening sessions and reviews of best practices. An equally important activity relates to the identification and assessment of “high risk” vendors in United States5G infrastructure, through efforts such as the Implementation of E.O. 13873, on “Securing the Information and Communications Technology and Services Supply Chain.” These efforts will build on the work of the CFIUS, the FASC, and Team Telecom reviews of certain Federal Communications Commission (FCC) licenses involving foreign ownership. This element of the implementation plan will also involve more intense engagement with the owners and operators of private sector communications infrastructure, systems equipment developers, and other critical infrastructure owners and operators. The engagements will involve sharing information on 5G and future generation wireless communications systems and infrastructure equipment. Such work will be conducted through the Network Security Information Exchange, the IT and Communications Sector and Government Coordinating Councils, the National Security Telecommunications Advisory Committee, and NTIA’s Communications Supply Chain Risk Information Partnership (C-SCRIP).
      • Line of Effort Four: Promote Responsible Global Development and Deployment of 5G: The fourth line of effort addresses the responsible global development and deployment of 5G technology. A key component of this line of effort is diplomatic outreach and engagement to advocate for the adoption and implementation of 5G security measures that prohibit the use of untrusted vendors in all parts of 5G networks. A related component involves the provision of technical assistance to mutual defense treaty allies and strategic partners of the United States to maximize the security oftheir5G and future generations of wireless communications systems and infrastructure. The goal of providing financing support and technical assistance is to help enable countries and private companies to develop secure and trusted next generation networks that are free of untrusted vendors and that increase global connectivity. A key part of 5G deployment involves international standards development, thus the implementation plan outlines several steps in support of the goal of strengthening and expanding United States leadership in international standards bodies and voluntary consensus-based standards organizations, including strengthening coordination with and among the private sector. This line of effort will also include collaboration with allies and partners with regard to testing programs to ensure secure 5G and future wireless communications systems and infrastructure equipment, including spectrum-related testing. To successfully execute this work, continued close coordination between the United States Government, private sector, academic, and international government partners is required to ensure adoption of policies, standards, guidelines, and procurement strategies that reinforce 5G vendor diversity and foster market competition. The overarching goals of this line of effort are to promote United States-led or linked technology solutions in the global market; remove and reduce regulatory and trade barriers that harm United States competitiveness; provide support for trusted vendors; and advocate for policies and laws that promote open, competitive markets for United States technology companies. This will also be supported through close collaboration with partners on options to advance the development and deployment of open interfaced, standards-based, and interoperable 5G networks.
  • The Federal Communications Commission (FCC) issued its annual “Broadband Deployment Report,” one of the last reports on FCC policy under the stewardship of former Chair Ajit Pai. In the agency’s press release, Pai claimed “[i]n just three years, the number of American consumers living in areas without access to fixed broadband at 25/3 Mbps has been nearly cut in half.” He added:
    • These successes resulted from forward-thinking policies that removed barriers to infrastructure investment and promoted competition and innovation.  I look forward to seeing the Commission continue its efforts to ensure that all Americans have broadband access.  Especially with the success of last year’s Rural Digital Opportunity Fund Phase I auction, I have no doubt that these figures will continue to improve as auction winners deploy networks in the areas for which they got FCC funding.
    • In relevant part, the FCC claimed:
      • Moreover, more than three-quarters of those in newly served areas, nearly 3.7 million, are located in rural areas, bringing the number of rural Americans in areas served by at least 25/3 Mbps to nearly 83%. Since 2016, the number of Americans living in rural areas lacking access to 25/3 Mbps service has fallen more than 46%.  As a result, the rural–urban divide is rapidly closing; the gap between the percentage of urban Americans and the percentage of rural Americans with access to 25/3 Mbps fixed broadband has been nearly halved, falling from 30 points at the end of 2016 to just 16 points at the end of 2019.
      • With regard to mobile broadband, since 2018, the number of Americans lacking access to 4G LTE mobile broadband with a median speed of 10/3 Mbps was reduced by more than 57%, including a nearly 54% decrease among rural Americans.  As of the end of 2019, the vast majority of Americans, 94% had access to both 25/3 Mbps fixed broadband service and mobile broadband service with a median speed of 10/3 Mbps. Also as of the end of 2019, mobile providers now provide access to 5G capability to approximately 60% of Americans. These strides in mobile broadband deployment were fueled by more than $29 billion of capital expenditures in 2019 (roughly 18% of global mobile capital spending), the largest mobile broadband investment since 2015.
      • .  With this Report, the Commission fulfills the Congressional directive to report each year on the progress made in deploying broadband to all Americans. Despite this finding, our work to close the digital divide is not complete.  The Commission will continue its efforts to ensure that all Americans have the ability to access broadband.
  • The chair of the House Oversight and Reform Committee wrote a letter asking Federal Bureau of Investigation (FBI) Director Christopher Wray to conduct “a comprehensive investigation into the role that the social media site Parler played in the assault on the Capitol on January 6.” Chair Carolyn Maloney (D-NY) indicated her committee is also investigating the events of 6 January, suggesting there could be hearings soon on the matter. In the letter, Maloney asserted:
    • It is clear that Parler houses additional evidence critical to investigations of the attack on the Capitol. One commentator has already used geolocation data associated with Parler to track 1,200 videos that were uploaded in Washington, D.C. on January 6.
    • Questions have also been raised about Parler’s financing and its ties to Russia, which the Intelligence Community has warned is continuing to use social media and other measures to sow discord in the United States and interfere with our democracy. For example, posters on Parler have reportedly been traced back to Russian disinformation campaigns. The company was founded by John Matze shortly after he traveled in Russia with his wife, who is Russian and whose family reportedly has ties to the Russian government. Concerns about the company’s connections to Russia have grown since the company re-emerged on a Russian hosting service, DDos-Guard, after being denied services by Amazon Web Services. DDos-Guard has ties to the Russian government and hosts the websites of other far-right extremist groups, as well as the terrorist group Hamas.According to another recent report, “DDoS-Guard’s other clients include the Russian ministry of defence, as well as media organisations in Moscow.”
    • Given these concerns, we ask that the FBI undertake a robust review of the role played by Parler in the January 6 attacks, including (1) as a potential facilitator of planning and incitement related to the attacks, (2) as a repository of key evidence posted by users on its site, and (3) as potential conduit for foreign governments who may be financing civil unrest in the United States.
  • Microsoft released further detailed, technical findings from its investigation into the wide-ranging SolarWinds hack. Last month, Microsoft revealed that its source code had been accessed as part of the Russian hack and stressed that source code for its products had not been changed or tampered with. In its update on its SolarWinds investigation, Microsoft explained:
    • As we continue to gain deeper understanding of the Solorigate attack, we get a clearer picture of the skill level of the attackers and the extent of planning they put into pulling off one of the most sophisticated attacks in recent history. The combination of a complex attack chain and a protracted operation means that defensive solutions need to have comprehensive cross-domain visibility into attacker activity and provide months of historical data with powerful hunting tools to investigate as far back as necessary.
    • More than a month into the discovery of Solorigate, investigations continue to unearth new details that prove it is one of the most sophisticated and protracted intrusion attacks of the decade. Our continued analysis of threat data shows that the attackers behind Solorigate are skilled campaign operators who carefully planned and executed the attack, remaining elusive while maintaining persistence. These attackers appear to be knowledgeable about operations security and performing malicious activity with minimal footprint. In this blog, we’ll share new information to help better understand how the attack transpired. Our goal is to continue empowering the defender community by helping to increase their ability to hunt for the earliest artifacts of compromise and protect their networks from this threat.
    • As mentioned, in a 31 December 2020 blog posting, Microsoft revealed:
      • Our investigation has, however, revealed attempted activities beyond just the presence of malicious SolarWinds code in our environment. This activity has not put at risk the security of our services or any customer data, but we want to be transparent and share what we’re learning as we combat what we believe is a very sophisticated nation-state actor.
      • We detected unusual activity with a small number of internal accounts and upon review, we discovered one account had been used to view source code in a number of source code repositories. The account did not have permissions to modify any code or engineering systems and our investigation further confirmed no changes were made. These accounts were investigated and remediated.
  • The Trump Administration’s United States Trade Representative (USTR) weighed in on Australia’s proposed law to make Google, Facebook, and other technology companies pay for using Australian media content. The USTR reiterated the United States (U.S.) position that forcing U.S. firms to pay for content, as proposed, in unacceptable. It is likely the view of a Biden Administration is not likely to change. The Australian Senate committee considering the “Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020” had asked for input. In relevant part, the USTR argued:
    • the U.S. Government is concerned that an attempt, through legislation, to regulate the competitive positions of specific players in a fast-evolving digital market, to the clear detriment of two U.S. firms, may result in harmful outcomes. There may also be long-lasting negative consequences for U.S. and Australian firms, as well as Australian consumers. While the revised draft has partially addressed some U.S. concerns—including an effort to move towards a more balanced evaluation of the value news businesses and platforms offer each other in the context of mandatory arbitration—significant issues remain.
  • Plaintiffs have filed suit in California state court against WeChat and Tencent by Plaintiff Citizen Power Initiatives for China (CPIFC) and six unnamed California residents who use WeChat. They argue that the government of the People’s Republic of China (PRC) controls WeChat and forces it and its parent, Tencent, to turn over user data to the PRC in violation of California law. They make other allegations of unlawful conduct, including denying users in California the right to access funds though the app in the PRC. They are seeking class action status in order to bring a larger action against the PRC company. The plaintiffs claimed:
    • This case arises from Tencent’s practices of profiting from politically motivated, pro-Chinese Communist Party (“CCP”) censorship and surveillance of California WeChat users (“challenged practices”), which includes the practice of turning over private user data and communications to the government of the People’s Republic of China (“PRC government,” and, together with the CCP, the “Party-state”), and which inflicts an array of harms. Specifically, the challenged practices include Tencent’s practices of: (i) turning over private California WeChat user data and communications to the Party-state; (ii) profiting by using California WeChat user data and communications to improve Tencent’s censorship and surveillance algorithms; (iii) censoring and surveilling California WeChat user communications for content perceived as critical of the Party-state; (iv) suspending, blocking, or deleting California WeChat user accounts and/or data over such content; and (v) prohibiting California WeChat users from withdrawing funds stored in their WeChat accounts when those users do not possess an account with a PRC financial institution subject to monitoring by the Party-state.
    • This action also challenges provisions in Tencent’s terms of service and privacy policy  which,  taken  together,  are  oppressive,  obfuscatory,  and  incoherent  (“challenged provisions”). The challenged provisions include privacy-related terms that are deliberately vague and ambiguous with respect to whether the challenged practices are permitted or prohibited (“vague and ambiguous privacy provisions”), which in turn benefits Tencent by reserving to it the right to adopt self-interested interpretations. However, California WeChat users are entitled to clear, unambiguous, and testable language with respect to the nature and scope of their privacy on WeChat—in other words, to honesty and transparency.
    • Yet, even if the challenged practices were unambiguously prohibited under the challenged provisions, the challenged provisions include terms that make it practically impossible for California WeChat users to seek meaningful redress for the harms caused by those practices (“remedy-limiting provisions”). 
    • Finally, the challenged provisions include terms that impermissibly discriminate against California WeChat users who happen to be citizens of the PRC (“long-arm provisions”).
  • Representatives Anna Eshoo (D-CA) and Tom Malinowski (D-NJ) wrote the CEOs of Facebook, Twitter, and YouTube “urging the companies to address the fundamental design features of their social networks that facilitate the spread of extreme, radicalizing content to their users” per their press release. Last fall, Eshoo and Malinowski introduced the “Protecting Americans from Dangerous Algorithms Act” (H.R.8636) that would subject platforms like Facebook, Twitter, and YouTube to civil suits on the basis of the algorithms used to amplify content that violates the civil rights of others or results in international terrorism. They asserted:
    • The lawmakers note that the rioters who attacked the Capitol earlier this month were radicalized in part in digital echo chambers that these platforms designed, built, and maintained, and that the platforms are partially responsible for undermining our shared sense of objective reality, for intensifying fringe political beliefs, for facilitating connections between extremists, leading some of them to commit real-world, physical violence.
  • The United States (U.S.) Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) announced “[u]sing enterprise risk management best practices will be a focus for CISA in 2021, and today the National Risk Management Center (NRMC) is launching a Systemic Cyber Risk Reduction Venture to organize our work to reduce shared risk to the Nation’s security and economic security.” CISA explained that “[w]e anticipate three overarching lines of effort:
    • Build the Underlying Architecture for Cyber Risk Analysis to Critical Infrastructure. The critical infrastructure community is underpinned by a dependent web of hardware, software, services, and other connected componentry.
    • Cyber Risk Metric Development. Supporting efforts to better understand the impact of cyber risk across the critical infrastructure community will require developing usable metrics to quantify cyber risk in terms of functional loss. There’s no need to get bogged down with Greek equations with decimal place-level specificity. Metrics that provide even directional or comparative indicators are enormously helpful.
    • Promoting Tools to Address Concentrated Sources of Cyber Risk. Central to our venture to reduce systemic cyber risk is finding concentrated sources of risk that, if mitigated, provide heightened risk management bang for the buck if addressed.
  • The President’s Council of Advisors on Science and Technology (PCAST) issued its first assessment of a government program to fund research and development of advanced information technology for the first time since 2015. PCAST explained:
    • As required by statute, PCAST is tasked with periodically reviewing the Networking and Information Technology Research and Development (NITRD) Program, the Nation’s primary source of federally funded research and development in advanced information technologies such as computing, networking, and software. This report examines the NITRD Program’s progress since the last review was conducted in 2015, explores emerging areas of interest relevant to the NITRD Program, and presents PCAST’s findings and recommendations.
    • PCAST made the following recommendations:
      • Recommendation 1: The current NITRD Program model and its approach to coordinating foundational research in NIT fields across participating agencies should continue as constituted, with the following modifications:
        • NITRD groups should continue to review the PCAs regularly using a fast track action committee (FTAC) and adjust as needed (with a frequency of perhaps every 3 years rather than every 5–6 years, as had been recommended in the 2015 NITRD Review). It should also continue to review IWGs periodically, as recommended in the 2015 NITRD Review.
        • The NITRD Program should continue to pursue incremental modifications of existing structures (e.g., IWGs, PCAs) rather than engage in wholesale reorganizations at this time.
        • When launching wholly new IWGs and PCAs (e.g., such as the AI IWG and AI PCA), the NITRD Program should consider showing clearly in the annual NITRD Supplement to the President’s Budget which lines of effort derive from previous structures and which are wholly new programmatic areas and funding lines. This will be especially important should NITRD groups increase the frequency with which they review and modify PCAs.
      • Recommendation 2: The NITRD Program should examine current structures and operations to identify opportunities for greater multi-sector engagement in its activities. Opportunities include the following:
        • Amplify multi-sector outreach and engagement efforts. While the NITRD Program notifies the public about its convening activities, it could augment its outreach.
        • Expand the NITRD Program’s efforts to track non-U.S. coordinated NIT efforts and collaborate with international efforts where appropriate. This should be done in coordination with the NSTC International S&T Coordination Subcommittee to avoid duplicating efforts.
      • Recommendation 3: The NITRD Program should examine current structures and operations to identify opportunities for improving coordination in IotF areas related to the program. Opportunities could include:
        • AI—continue coordination efforts within the NITRD Program and between NITRD IWGs and the NSTC Select Committee on AI and the Machine Learning and Artificial Intelligence (MLAI) Subcommittee.
        • Advanced communications networks—continue coordination efforts within the NITRD Program through the Subcommittee and the LSN and WSRD IWGs.
        • QIS—increase coordination with the NQCO and the NSTC QIS Subcommittee, particularly on topics such as post-quantum cryptography R&D and other implications of the development of quantum technologies on the NIT landscape with advances in QIS.
        • Biotechnology—coordinate with NSTC bodies working in biosciences-related areas such as the Biodefense R&D (BDRD) Subcommittee and the Biological Sciences Subcommittee (BSSC).
        • Advanced manufacturing—coordinate with the NSTC Subcommittee on Advanced
        • Manufacturing and large-scale manufacturing R&D efforts such as the Manufacturing USA Institutes.
      • Recommendation 4: The NITRD Program should incorporate microelectronics R&D explicitly into its programmatic activities.
        • Could take the form of a separate IWG or incorporating hardware/components R&D into existing IWGs.
        • Should be stronger NNI-NITRD coordination to ensure alignment of R&D strategies and programmatic activities.
      • Recommendation 5: The NITRD Program should further examine ways it can coordinate its participating agencies—such as through an IWG or other multiagency bodies—to ensure they support and emphasize the following:
        • STEM education, including PhD fellowships, in NIT.
        • Programs at the intersection and convergence of computational science and other fields (CS + X) at 2-year and 4-year educational institutions.
        • Retraining and upskilling the non-technical workforce to participate in the cyber-ready workforce.
        • A diverse and inclusive NIT workforce across all levels of technical staff, engineers, and scientists.
        • Strengthen efforts to attract and retain international students, scientists, and engineers who wish to contribute to NIT R&D in the United States. These efforts should be informed by conducting studies of the role that international talent plays in the U.S. NIT workforce and any factors affecting recent changes in recruitment and retention.

Coming Events

  • The Commerce, Science, and Transportation Committee will hold a hearing on the nomination of Gina Raimondo to be the Secretary of Commerce on 26 January.
  • On 17 February, the Federal Communications Commission (FCC) will hold an open meeting, its first under acting Chair Jessica Rosenworcel, with this tentative agenda:
    • Presentation on the Emergency Broadband Benefit Program. The Commission will hear a presentation on the creation of an Emergency Broadband Benefit Program. Congress charged the FCC with developing a new $3.2 billion program to help Americans who are struggling to pay for internet service during the pandemic.
    • Presentation on COVID-19 Telehealth Program. The Commission will hear a presentation about the next steps for the agency’s COVID-19 Telehealth program. Congress recently provided an additional $249.95 million to support the FCC’s efforts to expand connected care throughout the country and help more patients receive health care safely.
    • Presentation on Improving Broadband Mapping Data. The Commission will hear a presentation on the work the agency is doing to improve its broadband maps. Congress directly appropriated $65 million to help the agency develop better data for improved maps.
    • Addressing 911 Fee Diversion. The Commission will consider a Notice of Proposed Rulemaking that would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the Commission to take action to help address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911. (PS Docket Nos. 20-291, 09-14)
    • Implementing the Secure and Trusted Communications Networks Act. The Commission will consider a Third Further Notice of Proposed Rulemaking that proposes to modify FCC rules consistent with changes that were made to the Secure and Trusted Communications Networks Act in the Consolidated Appropriations Act, 2021. (WC Docket No. 18-89)
  • On 27 July 2021, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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Further Reading, Other Development, and Coming Events (20 and 21 January 2021)

Further Reading

  • Amazon’s Ring Neighbors app exposed users’ precise locations and home addresses” By Zack Whittaker — Tech Crunch. Again Amazon’s home security platform suffers problems by way of users data being exposed or less than protected.
  • Harassment of Chinese dissidents was warning signal on disinformation” By Shawna Chen and Bethany Allen-Ebrahimian — Axios. In an example of how malicious online activities can spill into the real world as a number of Chinese dissidents were set upon by protestors.
  • How Social Media’s Obsession with Scale Supercharged Disinformation” By Joan Donovan — Harvard Business Review. Companies like Facebook and Twitter emphasized scale over safety in trying to grow as quickly as possible. This lead to a proliferation of fake accounts and proved welcome ground for the seeds of misinformation.
  • The Moderation War Is Coming to Spotify, Substack, and Clubhouse” By Alex Kantrowitz — OneZero. The same issues with objectionable and abusive content plaguing Twitter, Facebook, YouTube and others will almost certainly become an issue for the newer platforms, and in fact already are.
  • Mexican president mounts campaign against social media bans” By Mark Stevenson — The Associated Press. The leftist President of Mexico President Andrés Manuel López Obrador is vowing to lead international efforts to stop social media companies from censoring what he considers free speech. Whether this materializes into something substantial is not clear.
  • As Trump Clashes With Big Tech, China’s Censored Internet Takes His Side” By Li Yuan — The New York Times. The government in Beijing is framing the ban of former President Donald Trump after the attempted insurrection by social media platforms as proof there is no untrammeled freedom of speech. This position helps bolster the oppressive policing of online content the People’s Republic of China (PRC) wages against its citizens. And quite separately many Chinese people (or what appear to be actual people) are questioning what is often deemed the censoring of Trump in the United States (U.S.), a nation ostensibly committed to free speech. There is also widespread misunderstanding about the First Amendment rights of social media platforms not to host content with which they disagree and the power of platforms to make such determinations without fear that the U.S. government will punish them as is often the case in the PRC.
  • Trump admin slams China’s Huawei, halting shipments from Intel, others – sources” By Karen Freifeld and Alexandra Alper — Reuters. On its way out of the proverbial door, the Trump Administration delivered parting shots to Huawei and the People’s Republic of China by revoking one license and denying others to sell the PRC tech giant semiconductors. Whether the Biden Administration will reverse or stand by these actions remains to be seen. The companies, including Intel, could appeal. Additionally, there are an estimated $400 million worth of applications for similar licenses pending at the Department of Commerce that are now the domain of the new regime in Washington. It is too early to discern how the Biden Administration will maintain or modify Trump Administration policy towards the PRC.
  • Behind a Secret Deal Between Google and Facebook” By Daisuke Wakabayashi and Tiffany Hsu — The New York Times. The newspaper got its hands on an unredacted copy of the antitrust suit Texas Attorney General Ken Paxton and other attorneys general filed against Google, and it has details on the deal Facebook and Google allegedly struck to divide the online advertising world. Not only did Facebook ditch an effort launched by publishers to defeat Google’s overwhelming advantages in online advertising bidding, it joined Google’s rival effort with a guarantee that it would win a specified number of bids and more time to bid on ads. Google and Facebook naturally deny any wrongdoing.
  • Biden and Trump Voters Were Exposed to Radically Different Coverage of the Capitol Riot on Facebook” By Colin Lecher and Jon Keegan — The Markup. Using a tool on browsers the organization pays Facebook users to have, the Markup can track the type of material they see in their feed. Facebook’s algorithm fed people material about the 6 January 2021 attempted insurrection based on their political views. Many have pointed out that this very dynamic creates filter bubbles that poison democracy and public discourse.
  • Banning Trump won’t fix social media: 10 ideas to rebuild our broken internet – by experts” By Julia Carrie Wong — The Guardian. There are some fascinating proposals in this piece that could help address the problems of social media.
  • Misinformation dropped dramatically the week after Twitter banned Trump and some allies” By Elizabeth Dwoskin and Craig Timberg — The Washington Post. Research showed that lies, misinformation, and disinformation about election fraud dropped by three-quarters after former President Donald Trump was banned from Twitter and other platforms. Other research showed that a small group of conservatives were responsible for up to 20% of misinformation on this and other conspiracies.
  • This Was WhatsApp’s Plan All Along” By Shoshana Wodinsky — Gizmodo. This piece does a great job of breaking down into plain English the proposed changes to terms of service on WhatsApp that so enraged users that competitors Signal and Telegram have seen record-breaking downloads. Basically, it is all about reaping advertising dollars for Facebook through businesses and third-party partners using user data from business-related communications. Incidentally, WhatsApp has delayed changes until March because of the pushback.
  • Brussels eclipsed as EU countries roll out their own tech rules” By By Laura Kayali and Mark Scott — Politico EU. The European Union (EU) had a hard-enough task in trying to reach final language on a Digital Services Act and Digital Markets Act without nations like France, Germany, Poland, and others picking and choosing text from draft bills and enacting them into law. Brussels is not happy with this trend.

Other Developments

  • Federal Trade Commission (FTC) Chair Joseph J. Simons announced his resignation from the FTC effective on 29 January 2021 in keeping with tradition and past practice. This resignation clears the way for President Joe Biden to name the chair of the FTC, and along with FTC Commissioner Rohit Chopra’s nomination to head the Consumer Financial Protection Bureau (CFPB), the incoming President will get to nominate two Democratic FTC Commissioners, tipping the political balance of the FTC and likely ushering in a period of more regulation of the technology sector.
    • Simons also announced the resignation of senior staff: General Counsel Alden F. Abbott; Bureau of Competition Director Ian Conner; Bureau of Competition Deputy Directors Gail Levine and Daniel Francis; Bureau of Consumer Protection Director Andrew Smith; Bureau of Economics Director Andrew Sweeting; Office of Public Affairs Director Cathy MacFarlane; and Office of Policy Planning Director Bilal Sayyed.
  • In a speech last week before he sworn in, President Joe Biden announced his $1.9 trillion American Rescue Plan, and according to a summary, Biden will ask Congress to provide $10 billion for a handful of government facing programs to improve technology. Notably, Biden “is calling on Congress to launch the most ambitious effort ever to modernize and secure federal IT and networks.” Biden is proposing to dramatically increase funding for a fund that would allow agencies to borrow and then pay back funds to update their technology. Moreover, Biden is looking to push more money to a program to aid officials at agencies who oversee technology development and procurement.
    • Biden stated “[t]o remediate the SolarWinds breach and boost U.S. defenses, including of the COVID-19 vaccine process, President-elect Biden is calling on Congress to:
      • Expand and improve the Technology Modernization Fund. ​A $9 billion investment will help the U.S. launch major new IT and cybersecurity shared services at the Cyber Security and Information Security Agency (CISA) and the General Services Administration and complete modernization projects at federal agencies. ​In addition, the president-elect is calling on Congress to change the fund’s reimbursement structure in order to fund more innovative and impactful projects.
      • Surge cybersecurity technology and engineering expert hiring​. Providing the Information Technology Oversight and Reform fund with $200 million will allow for the rapid hiring of hundreds of experts to support the federal Chief Information Security Officer and U.S. Digital Service.
      • Build shared, secure services to drive transformational projects. ​Investing$300 million in no-year funding for Technology Transformation Services in the General Services Administration will drive secure IT projects forward without the need of reimbursement from agencies.
      • Improving security monitoring and incident response activities. ​An additional $690M for CISA will bolster cybersecurity across federal civilian networks, and support the piloting of new shared security and cloud computing services.
  • The United States (U.S.) Department of Commerce issued an interim final rule pursuant to an executive order (EO) issued by former President Donald Trump to secure the United States (U.S.) information and communications supply chain. This rule will undoubtedly be reviewed by the Biden Administration and may be withdrawn or modified depending on the fate on the EO on which the rule relies.
    • In the interim final rule, Commerce explained:
      • These regulations create the processes and procedures that the Secretary of Commerce will use to identify, assess, and address certain transactions, including classes of transactions, between U.S. persons and foreign persons that involve information and communications technology or services designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary; and pose an undue or unacceptable risk. While this interim final rule will become effective on March 22, 2021, the Department of Commerce continues to welcome public input and is thus seeking additional public comment. Once any additional comments have been evaluated, the Department is committed to issuing a final rule.
      • On November 27, 2019, the Department of Commerce (Department) published a proposed rule to implement the terms of the Executive Order. (84 FR 65316). The proposed rule set forth processes for (1) how the Secretary would evaluate and assess transactions involving ICTS to determine whether they pose an undue risk of sabotage to or subversion of the ICTS supply chain, or an unacceptable risk to the national security of the United States or the security and safety of U.S. persons; (2) how the Secretary would notify parties to transactions under review of the Secretary’s decision regarding the ICTS Transaction, including whether the Secretary would prohibit or mitigate the transaction; and (3) how parties to transactions reviewed by the Secretary could comment on the Secretary’s preliminary decisions. The proposed rule also provided that the Secretary could act without complying with the proposed procedures where required by national security. Finally, the Secretary would establish penalties for violations of mitigation agreements, the regulations, or the Executive Order.
      • In addition to seeking general public comment, the Department requested comments from the public on five specific questions: (1) Whether the Secretary should consider categorical exclusions or whether there are classes of persons whose use of ICTS cannot violate the Executive Order; (2) whether there are categories of uses or of risks that are always capable of being reliably and adequately mitigated; (3) how the Secretary should monitor and enforce any mitigation agreements applied to a transaction; (4) how the terms, “transaction,” “dealing in,” and “use of” should be clarified in the rule; and (5) whether the Department should add record-keeping requirements for information related to transactions.
      • The list of “foreign adversaries” consists of the following foreign governments and non-government persons: The People’s Republic of China, including the Hong Kong Special Administrative Region (China); the Republic of Cuba (Cuba); the Islamic Republic of Iran (Iran); the Democratic People’s Republic of Korea (North Korea); the Russian Federation (Russia); and Venezuelan politician Nicolás Maduro (Maduro Regime).
  • The Federal Trade Commission (FTC) adjusted its penalty amounts for inflation, including a boost to the per violation penalty virtually all the privacy bills introduced in the last Congress would allow the agency to wield against first-time violators. The penalty for certain unfair and deceptive acts or practices was increased from $43,280 to $43,792.
  • The United States (U.S.) Department of State stood up its new Bureau of Cyberspace Security and Emerging Technologies (CSET) as it has long planned. At the beginning of the Trump Administration, the Department of State dismantled the Cyber Coordinator Office and gave its cybersecurity portfolio to the Bureau of Economic Affairs, which displeased Congressional stakeholders. In 2019, the department notified Congress of its plan to establish CSET. The department asserted:
    • The need to reorganize and resource America’s cyberspace and emerging technology security diplomacy through the creation of CSET is critical, as the challenges to U.S. national security presented by China, Russia, Iran, North Korea, and other cyber and emerging technology competitors and adversaries have only increased since the Department notified Congress in June 2019 of its intent to create CSET.
    • The CSET bureau will lead U.S. government diplomatic efforts on a wide range of international cyberspace security and emerging technology policy issues that affect U.S. foreign policy and national security, including securing cyberspace and critical technologies, reducing the likelihood of cyber conflict, and prevailing in strategic cyber competition.  The Secretary’s decision to establish CSET will permit the Department to posture itself appropriately and engage as effectively as possible with partners and allies on these pressing national security concerns.
    • The Congressional Members of the Cyberspace Solarium Commission made clear their disapproval of the decision. Senators Angus King (I-ME) and Ben Sasse, (R-NE) and Representatives Mike Gallagher (R-WI) and Jim Langevin (D-RI) said:
      • In our report, we emphasize the need for a greater emphasis on international cyber policy at State. However, unlike the bipartisan Cyber Diplomacy Act, the State Department’s proposed Bureau will reinforce existing silos and […] hinder the development of a holistic strategy to promote cyberspace stability on the international stage. We urge President-elect Biden to pause this reorganization when he takes office in two weeks and work with Congress to enact meaningful reform to protect our country in cyberspace.
  • The Australian Cyber Security Centre (ACSC) the Risk Identification Guidance “developed to assist organisations in identifying risks associated with their use of suppliers, manufacturers, distributors and retailers (i.e. businesses that constitute their cyber supply chain)” and the Risk Management Guidance because “[c]yber supply chain risk management can be achieved by identifying the cyber supply chain, understanding cyber supply chain risk, setting cyber security expectations, auditing for compliance, and monitoring and improving cyber supply chain security practices.”
  • The United Kingdom’s Surveillance Camera Commissioner (SCC), issued “best practice guidance, ‘Facing the Camera’, to all police forces in England and Wales” The SCC explained that “The provisions of this document only apply to the use of facial recognition technology and the inherent processing of images by the police where such use is integral to a surveillance camera system being operated in ‘live time’ or ‘near real time’ operational scenarios.” Last summer, a British appeals court overturned a decision that found that a police force’s use of facial recognition technology in a pilot program that utilized live footage to be legal. The appeals court found the use of this technology by the South Wales Police Force a violation of “the right to respect for private life under Article 8 of the European  Convention  on  Human  Rights,  data  protection  legislation,  and  the  Public  Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010.” The SCC stated:
    • The SCC considers surveillance to be an intrusive investigatory power where it is conducted by the police which impacts upon those fundamental rights and freedoms of people, as set out by the European Convention of Human Rights (ECHR) and the Human Rights Act 1998. In the context of surveillance camera systems which make use of facial recognition technology, the extent of state intrusion in such matters is significantly increased by the capabilities of algorithms which are in essence, integral to the surveillance conduct seeking to harvest information, private information, metadata, data, personal data, intelligence and evidence. Each of the aforementioned are bound by laws and rules which ought to be separately and jointly considered and applied in a manner which is demonstrably lawful and ethical and engenders public trust and confidence.
    • Whenever the police seek to use technology in pursuit of a legitimate aim, the key question arises as to whether the degree of intrusion which is caused to the fundamental freedoms of citizens by the police surveillance conduct using surveillance algorithms (biometric or otherwise) is necessary in a democratic society when considered alongside the legality and proportionality of their endeavours and intent. The type of equipment/technology/modality which they choose to use to that end (e.g. LFR, ANPR, thermal imaging, gait analysis, movement sensors etc), the manner in which such technological means are deployed, (such as using static cameras at various locations, used with body worn cameras or other mobile means), and whether such technology is used overtly alongside or networked with other surveillance technologies, are all factors which may significantly influence the depth of intrusion caused by police conduct upon citizen’s rights.
  • The Senate confirmed the nomination of Avril Haines to be the new Director of National Intelligence by an 89-10 vote after Senator Tom Cotton (R-AK) removed his hold on her nomination. However, Josh Hawley (R-MO) placed a hold on the nomination of Alejandro Mayorkas to be the next Secretary of Homeland Security and explained his action this way:
    • On Day 1 of his administration, President-elect Biden has said he plans to unveil an amnesty plan for 11 million immigrants in this nation illegally. This comes at a time when millions of American citizens remain out of work and a new migrant caravan has been attempting to reach the United States. Mr. Mayorkas has not adequately explained how he will enforce federal law and secure the southern border given President-elect Biden’s promise to roll back major enforcement and security measures. Just today, he declined to say he would enforce the laws Congress has already passed to secure the border wall system. Given this, I cannot consent to skip the standard vetting process and fast-track this nomination when so many questions remain unanswered.
  • Former Trump White House Cyber Coordinator Rob Joyce will replace the National Security Agency’s (NSA) Director of Cybersecurity Anne Neuberger who has been named the Biden White House’s Deputy National Security Advisor for Cyber and Emerging Technology. Anne Neuberger’s portfolio at the NSA included “lead[ing] NSA’s cybersecurity mission, including emerging technology areas like quantum-resistant cryptography.” Joyce was purged when former National Security Advisor John Bolton restructured the NSC in 2018, forcing out Joyce and his boss, former Homeland Security Advisor Tom Bossert. Presumably Joyce would have the same responsibilities. At the National Security Council, Neuberger would will work to coordinate cybersecurity and emerging technology policy across agencies and funnel policy options up to the full NSC and ultimately the President. This work would include Joyce.
  • The Supreme Court of the United States (SCOTUS) heard oral arguments on whether the Federal Trade Commission (FTC) Act gives the agency the power to seek monetary damages and restitution alongside permanent injunctions under Section 13(b). In AMG Capital Management, LLC v. FTC, the parties opposing the FTC argue the plain language of the statute does not allow for the seeking of restitution and monetary damages under this specific section of the FTC Act while the agency argues long accepted past practice and Congressional intent do, in fact, allow this relief to be sought when the FTC is seeking to punish violators of Section 5. The FTC is working a separate track to get a fix from Congress which could rewrite the FTC Act to make clear this sort of relief is legal. However, some stakeholders in the debate over privacy legislation may be using the case as leverage.
    • In October 2020, the FTC wrote the House and Senate committees with jurisdiction over the agency, asking for language to resolve the litigation over the power to seek and obtain restitution for victims of those who have violated Section 5 of the FTC Act and disgorgement of ill-gotten gains. The FTC is also asking that Congress clarify that the agency may act against violators even if their conduct has stopped as it has for more than four decades. Two federal appeals courts have ruled in ways that have limited the FTC’s long used powers, and now the Supreme Court of the United States is set to rule on these issues sometime next year. The FTC is claiming, however, that defendants are playing for time in the hopes that the FTC’s authority to seek and receive monetary penalties will ultimately be limited by the United States (U.S.) highest court. Judging by language tucked into a privacy bill introduced by the former chair of one of the committees, Congress may be willing to act soon.
    • The FTC asked the House Energy and Commerce and Senate Commerce, Science, and Transportation Committees “to take quick action to amend Section 13(b) [of the FTC Act i.e. 15 U.S.C. § 53(b)] to make clear that the Commission can bring actions in federal court under Section 13(b) even if conduct is no longer ongoing or impending when the suit is filed and can obtain monetary relief, including restitution and disgorgement, if successful.” The agency asserted “[w]ithout congressional action, the Commission’s ability to use Section 13(b) to provide refunds to consumer victims and to enjoin illegal activity is severely threatened.” All five FTC Commissioners signed the letter.
    • The FTC explained that adverse rulings by two federal appeals courts are constraining the agency from seeking relief for victims and punishment for violators of the FTC Act in federal courts below those two specific courts, but elsewhere defendants are either asking courts for a similar ruling or using delaying tactics in the hopes the Supreme Court upholds the two federal appeals courts:
      • …[C]ourts of appeals in the Third and Seventh Circuits have recently ruled that the agency cannot obtain any monetary relief under Section 13(b). Although review in the Supreme Court is pending, these lower court decisions are already inhibiting our ability to obtain monetary relief under 13(b). Not only do these decisions already prevent us from obtaining redress for consumers in the circuits where they issued, prospective defendants are routinely invoking them in refusing to settle cases with agreed-upon redress payments.
      • Moreover, defendants in our law enforcement actions pending in other circuits are seeking to expand the rulings to those circuits and taking steps to delay litigation in anticipation of a potential Supreme Court ruling that would allow them to escape liability for any monetary relief caused by their unlawful conduct. This is a significant impediment to the agency’s effectiveness, its ability to provide redress to consumer victims, and its ability to prevent entities who violate the law from profiting from their wrongdoing.
  • The United Kingdom’s Information Commissioner’s Office (ICO) issued guidance for British entities that may be affected by the massive SolarWinds hack that has compromised many key systems in the United States. The ICO advised:
    • Organisations should immediately check whether they are using a version of the software that has been compromised. These are versions 2019.4 HF 5, 2020.2 with no hotfix installed, and 2020.2 HF 1.
    • Organisations must also determine if the personal data they hold has been affected by the cyber-attack. If a reportable personal data breach is found, UK data controllers are required to inform the ICO within 72 hours of discovering the breach. Reports can be submitted online or organisations can call the ICO’s personal data breach helpline for advice on 0303 123 1113, option 2.
    • Organisations subject to the NIS Regulation will also need to determine if this incident has led to a “substantial impact on the provision’ of its digital services and report to the ICO.
  • Europol announced the takedown of “the world’s largest illegal marketplace on the dark web” in an operation coordinated by the following nations: “Germany, Australia, Denmark, Moldova, Ukraine, the United Kingdom (the National Crime Agency), and the USA (DEA, FBI, and IRS).” Europol added:
    • The Central Criminal Investigation Department in the German city of Oldenburg arrested an Australian citizen who is the alleged operator of DarkMarket near the German-Danish border over the weekend. The investigation, which was led by the cybercrime unit of the Koblenz Public Prosecutor’s Office, allowed officers to locate and close the marketplace, switch off the servers and seize the criminal infrastructure – more than 20 servers in Moldova and Ukraine supported by the German Federal Criminal Police office (BKA). The stored data will give investigators new leads to further investigate moderators, sellers, and buyers. 
  • The Enforcement Bureau (Bureau) of the Federal Communications Commission (FCC) issued an enforcement advisory intended to remind people that use of amateur and personal radios to commit crimes is itself a criminal offense that could warrant prosecution. The notice was issued because the FCC is claiming it is aware of discussion by some of how these means of communications may be superior to social media, which has been cracking down on extremist material since the attempted insurrection at the United States Capitol on 6 January. The Bureau stated:
    • The Bureau has become aware of discussions on social media platforms suggesting that certain radio services regulated by the Commission may be an alternative to social media platforms for groups to communicate and coordinate future activities.  The Bureau recognizes that these services can be used for a wide range of permitted purposes, including speech that is protected under the First Amendment of the U.S. Constitution.  Amateur and Personal Radio Services, however, may not be used to commit or facilitate crimes. 
    • Specifically, the Bureau reminds amateur licensees that they are prohibited from transmitting “communications intended to facilitate a criminal act” or “messages encoded for the purpose of obscuring their meaning.” Likewise, individuals operating radios in the Personal Radio Services, a category that includes Citizens Band radios, Family Radio Service walkie-talkies, and General Mobile Radio Service, are prohibited from using those radios “in connection with any activity which is against Federal, State or local law.” Individuals using radios in the Amateur or Personal Radio Services in this manner may be subject to severe penalties, including significant fines, seizure of the offending equipment, and, in some cases, criminal prosecution.
  • The European Data Protection Board (EDPB) issued its “Strategy for 2021-2023” in order “[t]o be effective in confronting the main challenges ahead.” The EDPB cautioned:
    • This Strategy does not provide an exhaustive overview of the work of the EDPB in the years to come. Rather it sets out the four main pillars of our strategic objectives, as well as set of key actions to help achieve those objectives. The EDPB will implement this Strategy within its Work Program, and will report on the progress achieved in relation to each Pillar as part of its annual reports.
    • The EDPB listed and explained the four pillars of its strategy:
      • PILLAR 1: ADVANCING HARMONISATION AND FACILITATING COMPLIANCE. The EDPB will continue to strive for a maximum degree of consistency in the application of data protection rules and limit fragmentation among Member States. In addition to providing practical, easily understandable and accessible guidance, the EDPB will develop and promote tools that help to implement data protection into practice, taking into account practical experiences of different stakeholders on the ground.
      • PILLAR 2: SUPPORTING EFFECTIVE ENFORCEMENT AND EFFICIENT COOPERATION BETWEEN NATIONAL SUPERVISORY AUTHORITIES. The EDPB is fully committed to support cooperation between all national supervisory authorities that work together to enforce European data protection law. We will streamline internal processes, combine expertise and promote enhanced coordination. We intend not only to ensure a more efficient functioning of the cooperation and consistency mechanisms, but also to strive for the development of a genuine EU-wide enforcement culture among supervisory authorities.
      • PILLAR 3: A FUNDAMENTAL RIGHTS APPROACH TO NEW TECHNOLOGIES. The protection of personal data helps to ensure that technology, new business models and society develop in accordance with our values, such as human dignity, autonomy and liberty. The EDPB will continuously monitor new and emerging technologies and their potential impact on the fundamental rights and daily lives of individuals. Data protection should work for all people, particularly in the face of processing activities presenting the greatest risks to individuals’ rights and freedoms (e.g. to prevent discrimination). We will help to shape Europe’s digital future in line with our common values and rules. We will continue to work with other regulators and policymakers to promote regulatory coherence and enhanced protection for individuals.
      • PILLAR 4: THE GLOBAL DIMENSION. The EDPB is determined to set and promote high EU and global standards for international data transfers to third countries in the private and the public sector, including in the law enforcement sector. We will reinforce our engagement with the international community to promote EU data protection as a global model and to ensure effective protection of personal data beyond EU borders.
  • The United Kingdom’s (UK) Information Commissioner’s Office (ICO) revealed that all but one of the videoconferencing platforms it and other data protection authorities’ (DPA) July 2020 letter urging them to “adopt principles to guide them in addressing some key privacy risks.” The ICO explained:
    • Microsoft, Cisco, Zoom and Google replied to the open letter. The joint signatories thank these companies for engaging on this important matter and for acknowledging and responding to the concerns raised. In their responses the companies highlighted various privacy and security best practices, measures, and tools that they advise are implemented or built-in to their video teleconferencing services.
    • The information provided by these companies is encouraging. It is a constructive foundation for further discussion on elements of the responses that the joint signatories feel would benefit from more clarity and additional supporting information.
    • The ICO stated:
      • The joint signatories have not received a response to the open letter from Houseparty. They strongly encourage Houseparty to engage with them and respond to the open letter to address the concerns raised.
  • The European Union Agency for Cybersecurity (ENISA) “launched a public consultation, which runs until 7 February 2021, on its draft of the candidate European Union Cybersecurity Certification Scheme on Cloud Services (EUCS)…[that] aims to further improve the Union’s internal market conditions for cloud services by enhancing and streamlining the services’ cybersecurity guarantees.” ENISA stated:
    • There are challenges to the certification of cloud services, such as a diverse set of market players, complex systems and a constantly evolving landscape of cloud services, as well as the existence of different schemes in Member States. The draft EUCS candidate scheme tackles these challenges by calling for cybersecurity best practices across three levels of assurance and by allowing for a transition from current national schemes in the EU. The draft EUCS candidate scheme is a horizontal and technological scheme that intends to provide cybersecurity assurance throughout the cloud supply chain, and form a sound basis for sectoral schemes.
    • More specifically, the draft EUCS candidate scheme:
      • Is a voluntary scheme;
      • The scheme’s certificates will be applicable across the EU Member States;
      • Is applicable for all kinds of cloud services – from infrastructure to applications;
      • Boosts trust in cloud services by defining a reference set of security requirements;
      • Covers three assurance levels: ‘Basic’, ‘Substantial’ and ‘High’;
      • Proposes a new approach inspired by existing national schemes and international standards;
      • Defines a transition path from national schemes in the EU;
      • Grants a three-year certification that can be renewed;
      • Includes transparency requirements such as the location of data processing and storage.

Coming Events

  • The Commerce, Science, and Transportation Committee will hold a hearing on the nomination of Gina Raimondo to be the Secretary of Commerce on 26 January.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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Further Reading, Other Developments, and Coming Events (13 and 14 January 2021)

Further Reading

  • YouTube Suspends Trump’s Channel for at Least Seven Days” By Daisuke Wakabayashi — The New York Times. Even Google is getting further into the water. Its YouTube platform flagged a video of President Donald Trump’s for inciting violence and citing the “ongoing potential for violence,” Trump and his team will not be able to upload videos for seven days and the comments section would be permanently disabled. YouTube has been the least inclined of the major platforms to moderate content and has somehow escaped the scrutiny and opprobrium Facebook and Twitter have faced even though those platforms have been more active in policing offensive content.
  • Online misinformation that led to Capitol siege is ‘radicalization,’ say researchers” By Elizabeth Culliford — Reuters. Experts in online disinformation are saying that the different conspiracy movements that impelled followers to attack the United States (U.S.) Capitol are the result of radicalization. Online activities translated into real world violence, they say. The also decried the responsive nature of social media platforms in acting, waiting for an insurrection to take steps experts and others have been begging them to take.
  • Uganda orders all social media to be blocked – letter” — Reuters. In response to Facebook blocking a number of government related accounts for Coordinated Inauthentic Behaviour” (CIB), the Ugandan government has blocked all access to social media ahead of its elections. In a letter seen by Reuters, the Uganda Communications Commission directed telecommunications providers “to immediately suspend any access and use, direct or otherwise, of all social media platforms and online messaging applications over your network until further notice.” This may become standard practice for many regimes around the world if social media companies crack down on government propaganda.
  • BlackBerry sells 90 patents to Huawei, covering key smartphone technology advances” By Sean Silcoff — The Globe and Mail. Critics of a deal to assign 90 key BlackBerry patents to Huawei are calling on the government of Prime Minister Justin Trudeau to be more involved in protecting Canadian intellectual property and innovations.
  • ‘Threat to democracy is real’: MPs call for social media code of conduct” By David Crowe and Nick Bonyhady — The Sydney Morning Herald. There has been mixed responses in Australia’s Parliament on social media platforms banning President Donald Trump after his role in inciting the violence at the United States (U.S.) Capitol. Many agree with the platforms, some disagree strenuously in light of other inflammatory content that is not taken down, and many want greater rationality and transparency in how platforms make these decisions. And since Canberra has been among the most active governments in regulating technology, it may inform the process of drafting its “Online Safety Bill,” which may place legal obligations on social media platforms.
  • Poland plans to make censoring of social media accounts illegal” By Shaun Walker — The Guardian. Governments around the world continue to respond to a number of social media companies deciding to deplatform United States (U.S.) President Donald Trump. In Warsaw there is a draft bill that would make deplatforming a person illegal unless the offense is also contrary to Polish law. The spin is that the right wing regime in Warsaw is less interested in protecting free speech and more interested in propagating the same grievances the right wing in the United States is. Therefore, this push in Poland may be more about messaging and trying to cow social media companies and less about protecting free speech, especially speech with which the government disagrees (e.g. advocates for LGBTQI rights have been silenced in Poland.)
  • Facebook, Twitter could face punishing regulation for their role in U.S. Capitol riot, Democrats say” By Tony Romm — The Washington Post. Democrats were already furious with social media companies for what they considered their lacking governance of content that clearly violated terms of service and policies. These companies are bracing for an expected barrage of hearings and legislation with the Democrats controlling the White House, House, and Senate.
  • Georgia results sweep away tech’s regulatory logjam” By Margaret Harding McGill and Ashley Gold — Axios. This is a nice survey of possible policy priorities at the agencies and in the Congress over the next two years with the Democrats in control of both.
  • The Capitol rioters put themselves all over social media. Now they’re getting arrested.” By Sara Morrison — Recode. Will the attack on the United States (U.S.) Capitol be the first time a major crime is solved by the evidence largely provided by the accused? It is sure looking that way as law enforcement continues to use the posts of the rioters to apprehend, arrest, and charge them. Additionally, in the same way people who acted in racist and entitled ways (e.g. Amy Cooper in Central Park threatening an African American gentleman with calling the police even though he had asked her to put her dog on a leash) were caught through crowd-sourced identification pushes, rioters are also being identified.
  • CISA: SolarWinds Hackers Got Into Networks by Guessing Passwords” By Mariam Baksh — Nextgov. The Cybersecurity and Infrastructure Security Agency (CISA) has updated its alert on the SolarWinds hack to reflect its finding. CISA explained:
    • CISA incident response investigations have identified that initial access in some cases was obtained by password guessing [T1101.001], password spraying [T1101.003], and inappropriately secured administrative credentials [T1078] accessible via external remote access services [T1133]. Initial access root cause analysis is still ongoing in a number of response activities and CISA will update this section as additional initial vectors are identified.
  •  “A Facial Recognition Company Says That Viral Washington Times “Antifa” Story Is False” By Craig Silverman — BuzzFeed News. XRVIsion denied the Washington Times’ account that the company had identified antifa protestors among the rioters at the United States (U.S. Capitol) (archived here.) The company said it had identified two Neo-Nazis and a QAnon adherent. Even though the story was retracted and a corrected version issued, some still claimed the original story had merit such as Trump supporter Representative Matt Gaetz (R-FL).

Other Developments

  • The United States (U.S.) Trade Representative (USTR) announced that it would not act on the basis of three completed reports on Digital Services Taxes (DST) three nations have put in place and also that it would not proceed with tariffs in retaliation against France, one of the first nations in the world to enact a DST. Last year, the Organization for Economic Co-operation and Development convened multi-lateral talks to resolve differences on how a global digital services tax will ideally function with most of the nations involved arguing for a 2% tax to be assessed in the nation where the transaction occurs as opposed to where the company is headquartered. European Union (EU) officials claimed an agreement was possible, but the U.S. negotiators walked away from the table. It will fall to the Biden Administration to act on these USTR DST investigations if they choose.
    • In its press release, the USTR stated it would “suspend the tariff action in the Section 301 investigation of France’s Digital Services Tax (DST).”
      • The USTR added:
        • The additional tariffs on certain products of France were announced in July 2020, and were scheduled to go into effect on January 6, 2021.  The U.S. Trade Representative has decided to suspend the tariffs in light of the ongoing investigation of similar DSTs adopted or under consideration in ten other jurisdictions.  Those investigations have significantly progressed, but have not yet reached a determination on possible trade actions.  A suspension of the tariff action in the France DST investigation will promote a coordinated response in all of the ongoing DST investigations.
      • In its December 2019 report, the USTR determined “that France’s DST is unreasonable or discriminatory and burdens or restricts U.S. commerce, and therefore is actionable under sections 301(b) and 304(a) of the Trade Act (19 U.S.C. 2411(b) and 2414(a))” and proposed a range of measures in retaliation.
    • The USTR also “issued findings in Section 301 investigations of Digital Service Taxes (DSTs) adopted by India, Italy, and Turkey, concluding that each of the DSTs discriminates against U.S. companies, is inconsistent with prevailing principles of international taxation, and burden or restricts U.S. commerce.” The USTR stated it “is not taking any specific actions in connection with the findings at this time but will continue to evaluate all available options.” The USTR added:
      • The Section 301 investigations of the DSTs adopted by India, Italy, and Turkey were initiated in June 2020, along with investigations of DSTs adopted or under consideration by Austria, Brazil, the Czech Republic, the European Union, Indonesia, Spain, and the United Kingdom.  USTR expects to announce the progress or completion of additional DST investigations in the near future. 
  • The United Kingdom’s Competition and Markets Authority (CMA) has started investigating Google’s Privacy Sandbox’ project to “assess whether the proposals could cause advertising spend to become even more concentrated on Google’s ecosystem at the expense of its competitors.” The CMA asserted:
    • Third party cookies currently play a fundamental role online and in digital advertising. They help businesses target advertising effectively and fund free online content for consumers, such as newspapers. But there have also been concerns about their legality and use from a privacy perspective, as they allow consumers’ behaviour to be tracked across the web in ways that many consumers may feel uncomfortable with and may find difficult to understand.
    • Google’s announced changes – known collectively as the ‘Privacy Sandbox’ project – would disable third party cookies on the Chrome browser and Chromium browser engine and replace them with a new set of tools for targeting advertising and other functionality that they say will protect consumers’ privacy to a greater extent. The project is already under way, but Google’s final proposals have not yet been decided or implemented. In its recent market study into online platforms digital advertising, the CMA highlighted a number of concerns about their potential impact, including that they could undermine the ability of publishers to generate revenue and undermine competition in digital advertising, entrenching Google’s market power.
  • Facebook took down coordinated inauthentic behavior (CIB) originating from France and Russia, seeking to allegedly influence nations in Africa and the Middle East. Facebook asserted:
    • Each of the networks we removed today targeted people outside of their country of origin, primarily targeting Africa, and also some countries in the Middle East. We found all three of them as a result of our proactive internal investigations and worked with external researchers to assess the full scope of these activities across the internet.
    • While we’ve seen influence operations target the same regions in the past, this was the first time our team found two campaigns — from France and Russia — actively engage with one another, including by befriending, commenting and criticizing the opposing side for being fake. It appears that this Russian network was an attempt to rebuild their operations after our October 2019 takedown, which also coincided with a notable shift in focus of the French campaign to begin to post about Russia’s manipulation campaigns in Africa.
    • Unlike the operation from France, both Russia-linked networks relied on local nationals in the countries they targeted to generate content and manage their activity across internet services. This is consistent with cases we exposed in the past, including in Ghana and the US, where we saw the Russian campaigns co-opt authentic voices to join their influence operations, likely to avoid detection and help appear more authentic. Despite these efforts, our investigation identified some links between these two Russian campaigns and also with our past enforcements.
  • Two of the top Democrats on the House Energy and Committee along with another Democrat wrote nine internet service providers (ISP) “questioning their commitment to consumers amid ISPs raising prices and imposing data caps during the COVID-19 pandemic.” Committee Chair Frank Pallone, Jr. (D-NJ), Communications and Technology Subcommittee Chairman Mike Doyle (D-PA), and Representative Jerry McNerney (D-CA) wrote the following ISPs:
    • Pallone, Doyle, and McNerney took issue with the companies raising prices and imposing data caps after having pledged not to do so at the behest of the Federal Communications Commission (FCC). They asked the companies to answer a series of questions:
      • Did the company participate in the FCC’s “Keep Americans Connected” pledge?
      • Has the company increased prices for fixed or mobile consumer internet and fixed or phone service since the start of the pandemic, or do they plan to raise prices on such plans within the next six months? 
      • Prior to March 2020, did any of the company’s service plans impose a maximum data consumption threshold on its subscribers?
      • Since March 2020, has the company modified or imposed any new maximum data consumption thresholds on service plans, or do they plan to do so within the next six months? 
      • Did the company stop disconnecting customers’ internet or telephone service due to their inability to pay during the pandemic? 
      • Does the company offer a plan designed for low-income households, or a plan established in March or later to help students and families with connectivity during the pandemic?
      • Beyond service offerings for low-income customers, what steps is the company currently taking to assist individuals and families facing financial hardship due to circumstances related to COVID-19? 
  • The United States (U.S.) Department of Homeland Security (DHS) issued a “Data Security Business Advisory: Risks and Considerations for Businesses Using Data Services and Equipment from Firms Linked to the People’s Republic of China,” that “describes the data-related risks American businesses face as a result of the actions of the People’s Republic of China (PRC) and outlines steps that businesses can take to mitigate these risks.” DHS generally recommended:
    • Businesses and individuals that operate in the PRC or with PRC firms or entities should scrutinize any business relationship that provides access to data—whether business confidential, trade secrets, customer personally identifiable information (PII), or other sensitive information. Businesses should identify the sensitive personal and proprietary information in their possession. To the extent possible, they should minimize the amount of at-risk data being stored and used in the PRC or in places accessible by PRC authorities. Robust due diligence and transaction monitoring are also critical for addressing potential legal exposure, reputation risks, and unfair advantage that data and intellectual property theft would provide competitors. Businesses should seek to acquire a thorough understanding of the ownership of data service providers, location of data infrastructure, and any tangential foreign business relationships and significant foreign investors.
  • The Federal Communications Commission (FCC) is asking for comments on the $3.2 billion Emergency Broadband Benefit Program established in the “Consolidated Appropriations Act, 2021” (H.R. 133). Comments are due by 16 February 2021. The FCC noted “eligible households may receive a discount off the cost of broadband service and certain connected devices during an emergency period relating to the COVID-19 pandemic, and participating providers can receive a reimbursement for such discounts.” The FCC explained the program in further detail:
    • Pursuant to the Consolidated Appropriations Act, the Emergency Broadband Benefit Program will use available funding from the Emergency Broadband Connectivity Fund to support participating providers’ provision of certain broadband services and connected devices to qualifying households.
    • To participate in the program, a provider must elect to participate and either be designated as an eligible telecommunications carrier or be approved by the Commission. Participating providers will make available to eligible households a monthly discount off the standard rate for an Internet service offering and associated equipment, up to $50.00 per month.
    • On Tribal lands, the monthly discount may be up to $75.00 per month. Participating providers will receive reimbursement from the Emergency Broadband Benefit Program for the discounts provided.
    • Participating providers that also supply an eligible household with a laptop, desktop computer, or tablet (connected device) for use during the emergency period may receive a single reimbursement of up to $100.00 for the connected device, if the charge to the eligible household for that device is more than $10.00 but less than $50.00.  An eligible household may receive only one supported device.  Providers must submit certain certifications to the Commission to receive reimbursement from the program, and the Commission is required to adopt audit requirements to ensure provider compliance and prevent waste, fraud, and abuse.
  • The Biden-Harris transition team named National Security Agency’s (NSA) Director of Cybersecurity as the Biden White House’s Deputy National Security Advisor for Cyber and Emerging Technology. Anne Neuberger’s portfolio at the NSA included “lead[ing] NSA’s cybersecurity mission, including emerging technology areas like quantum-resistant cryptography.” At the National Security Council, Neuberger would will work to coordinate cybersecurity and emerging technology policy across agencies and funnel policy options up to the full NSC and ultimately the President. It is not clear how Neuberger’s portfolio will interact with the newly created National Cybersecurity Director, a position that, thus far, has remained without a nominee.
    • The transition noted “[p]rior to this role, she led NSA’s Election Security effort and served as Assistant Deputy Director of NSA’s Operations Directorate, overseeing foreign intelligence and cybersecurity operations…[and] also previously served as NSA’s first Chief Risk Officer, as Director of NSA’s Commercial Solutions Center, as Director of the Enduring Security Framework cybersecurity public-private partnership, as the Navy’s Deputy Chief Management Officer, and as a White House Fellow.” The transition stated that “[p]rior to joining government service, Neuberger was Senior Vice President of Operations at American Stock Transfer & Trust Company (AST), where she directed technology and operations.”
  • The Federal Communications Commission (FCC) published a final rule in response to the United States (U.S.) Court of Appeals for the District of Columbia’s decision striking down three aspects of the FCC’s rollback of net neutrality, “Restoring Internet Freedom Order.” The FCC explained the final rule:
    • responds to a remand from the U.S. Court of Appeals for the D.C. Circuit directing the Commission to assess the effects of the Commission’s Restoring Internet Freedom Order on public safety, pole attachments, and the statutory basis for broadband internet access service’s inclusion in the universal service Lifeline program. This document also amends the Commission’s rules to remove broadband internet service from the list of services supported by the universal service Lifeline program, while preserving the Commission’s authority to fund broadband internet access service through the Lifeline program.
    • In 2014, the U.S. Court of Appeals for the District of Columbia struck down a 2010 FCC net neutrality order in Verizon v. FCC, but the court did suggest a path forward. The court held the FCC “reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence.” The court added that “even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates…[and] [g]iven that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.” However, in 2016, the same court upheld the 2015 net neutrality regulations in U.S. Telecom Association v. FCC, and then upheld most of the Trump Administration’s FCC’s repeal of the its earlier net neutrality rule.
    • However, the D.C. Circuit declined to accept the FCC’s attempt to preempt all contrary state laws and struck down this part of the FCC’s rulemaking. Consequently, states and local jurisdictions may now be free to enact regulations of internet services along the lines of the FCC’s now repealed Open Internet Order. The D.C. Circuit also sent the case back to the FCC for further consideration on three points.
    • In its request for comments on how to respond to the remand, the FCC summarized the three issues: public safety, pole attachments, and the Lifeline Program:
      • Public Safety.  First, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect public safety. In the Restoring Internet Freedom Order, the Commission predicted, for example, that permitting paid prioritization arrangements would “increase network innovation,” “lead[] to higher investment in broadband capacity as well as greater innovation on the edge provider side of the market,” and “likely . . . be used to deliver enhanced service for applications that need QoS [i.e., quality of service] guarantees.” Could the network improvements made possible by prioritization arrangements benefit public safety applications—for example, by enabling the more rapid, reliable transmission of public safety-related communications during emergencies? 
      • Pole Attachments.  Second, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the regulation of pole attachments in states subject to federal regulation.  To what extent are ISPs’ pole attachments subject to Commission authority in non-reverse preemption states by virtue of the ISPs’ provision of cable or telecommunications services covered by section 224?  What impact would the inapplicability of section 224 to broadband-only providers have on their access to poles?  Have pole owners, following the Order, “increase[d] pole attachment rates or inhibit[ed] broadband providers from attaching equipment”?  How could we use metrics like increases or decreases in broadband deployment to measure the impact the Order has had on pole attachment practices?  Are there any other impacts on the regulation of pole attachments from the changes adopted in the Order?  Finally, how do any potential considerations about pole attachments bear on the Commission’s underlying decision to classify broadband as a Title I information service?
      • Lifeline Program.  Third, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the Lifeline program.  In particular, we seek to refresh the record on the Commission’s authority to direct Lifeline support to eligible telecommunications carriers (ETCs) providing broadband service to qualifying low-income consumers.  In the 2017 Lifeline NPRM, the Commission proposed that it “has authority under Section 254(e) of the Act to provide Lifeline support to ETCs that provide broadband service over facilities-based broadband-capable networks that support voice service,” and that “[t]his legal authority does not depend on the regulatory classification of broadband Internet access service and, thus, ensures the Lifeline program has a role in closing the digital divide regardless of the regulatory classification of broadband service.”  How, if at all, does the Mozilla decision bear on that proposal, and should the Commission proceed to adopt it? 
  • The Federal Trade Commission (FTC) reached a settlement with a photo app company that allegedly did not tell users their photos would be subject to the company’s facial recognition technology. The FTC deemed this a deceptive business practice in violation of Section 5 of the FTC Act and negotiated a settlement the Commissioners approved in a 5-0 vote. The consent order includes interesting, perhaps even new language, requiring the company “to delete models and algorithms it developed by using the photos and videos uploaded by its users” according to the FTC’s press release.
    • In the complaint, the FTC asserted:
      • Since 2015, Everalbum has provided Ever, a photo storage and organization application, to consumers.
      • In February 2017, Everalbum launched its “Friends” feature, which operates on both the iOS and Android versions of the Ever app. The Friends feature uses face recognition to group users’ photos by faces of the people who appear in the photos. The user can choose to apply “tags” to identify by name (e.g., “Jane”) or alias (e.g., “Mom”) the individuals who appear in their photos. These tags are not available to other Ever users. When Everalbum launched the Friends feature, it enabled face recognition by default for all users of the Ever mobile app. At that time, Everalbum did not provide users of the Ever mobile app an option to turn off or disable the feature.
      • However, prior to April 2019, Ever mobile app users who were located anywhere other than Texas, Illinois, Washington, and the European Union did not need to, and indeed could not, take any affirmative action to “let[ Everalbum] know” that it should apply face recognition to the users’ photos. In fact, for those users, face recognition was enabled by default and the users lacked the ability to disable it. Thus, the article was misleading for Ever mobile app users located outside of Texas, Illinois, Washington, and the European Union.
      • Between September 2017 and August 2019, Everalbum combined millions of facial images that it extracted from Ever users’ photos with facial images that Everalbum obtained from publicly available datasets in order to create four new datasets to be used in the development of its face recognition technology. In each instance, Everalbum used computer scripts to identify and compile from Ever users’ photos images of faces that met certain criteria (i.e., not associated with a deactivated Ever account, not blurry, not too small, not a duplicate of another image, associated with a specified minimum number of images of the same tagged identity, and, in three of the four instances, not identified by Everalbum’s machines as being an image of someone under the age of thirteen).
      • The FTC summarized its settlement:
        • The proposed settlement requires Everalbum to delete:
          • the photos and videos of Ever app users who deactivated their accounts;
          • all face embeddings—data reflecting facial features that can be used for facial recognition purposes—the company derived from the photos of Ever users who did not give their express consent to their use; and
          • any facial recognition models or algorithms developed with Ever users’ photos or videos.
        • In addition, the proposed settlement prohibits Everalbum from misrepresenting how it collects, uses, discloses, maintains, or deletes personal information, including face embeddings created with the use of facial recognition technology, as well as the extent to which it protects the privacy and security of personal information it collects. Under the proposed settlement, if the company markets software to consumers for personal use, it must obtain a user’s express consent before using biometric information it collected from the user through that software to create face embeddings or develop facial recognition technology.
      • FTC Commissioner Rohit Chopra issued a statement, explaining his view on facial recognition technology and he settlement:
        • As outlined in the complaint, Everalbum made promises that users could choose not to have facial recognition technology applied to their images, and that users could delete the images and their account. In addition to those promises, Everalbum had clear evidence that many of the photo app’s users did not want to be roped into facial recognition. The company broke its promises, which constitutes illegal deception according to the FTC’s complaint. This matter and the FTC’s proposed resolution are noteworthy for several reasons.
        • First, the FTC’s proposed order requires Everalbum to forfeit the fruits of its deception. Specifically, the company must delete the facial recognition technologies enhanced by any improperly obtained photos. Commissioners have previously voted to allow data protection law violators to retain algorithms and technologies that derive much of their value from ill-gotten data. This is an important course correction.
        • Second, the settlement does not require the defendant to pay any penalty. This is unfortunate. To avoid this in the future, the FTC needs to take further steps to trigger penalties, damages, and other relief for facial recognition and data protection abuses. Commissioners have voted to enter into scores of settlements that address deceptive practices regarding the collection, use, and sharing of personal data. There does not appear to be any meaningful dispute that these practices are illegal. However, since Commissioners have not restated this precedent into a rule under Section 18 of the FTC Act, we are unable to seek penalties and other relief for even the most egregious offenses when we first discover them.
        • Finally, the Everalbum matter makes it clear why it is important to maintain states’ authority to protect personal data. Because the people of Illinois, Washington, and Texas passed laws related to facial recognition and biometric identifiers, Everalbum took greater care when it came to these individuals in these states. The company’s deception targeted Americans who live in states with no specific state law protections.
  • The Trump Administration issued the “National Maritime Cybersecurity Plan” that “sets forth how the United States government will defend the American economy through enhanced cybersecurity coordination, policies and practices, aimed at mitigating risks to the maritime sub-sector, promoting prosperity through information and intelligence sharing, and preserving and increasing the nation’s cyber workforce” according to the National Security Advisor Robert O’Brien. It will be up to the Biden Administration to implement, revise, or discard this strategy, but strategy documents such as this that complain anodyne recommendations tend to stay in place for the short-term, at least. It bears note that the uneven margins to the columns in the document suggests a rush to issue this document before the end of the Trump Administration. Nevertheless, O’Brien added:
    • President [Donald] Trump designated the cybersecurity of the Maritime Transportation System (MTS) as a top priority for national defense, homeland security, and economic competitiveness in the 2017 National Security Strategy. The MTS contributes to one quarter of all United States gross domestic product, or approximately $5.4 trillion. MTS operators are increasingly reliant on information technology (IT) and operational technology (OT) to maximize the reliability and efficiency of maritime commerce. This plan articulates how the United States government can buy down the potential catastrophic risks to our national security and economic prosperity created by technology innovations to strengthen maritime commerce efficiency and reliability.
    • The strategy lists a number of priority actions for the executive branch, including:
      • The United States will de- conflict government roles and responsibilities.
      • The United States will develop risk modeling to inform maritime cybersecurity standards and best practices.
      • The United States will strengthen cybersecurity requirements in port services contracts and leasing.
      • The United States will develop procedures to identify, prioritize, mitigate, and investigate cybersecurity risks in critical ship and port systems.
      • Exchange United States government information with the maritime industry.
      • Share cybersecurity intelligence with appropriate non- government entities.
      • Prioritize maritime cybersecurity intelligence collection.
  • The National Security Agency’s NSA Cybersecurity Directorate has issued its very annual review, the “2020 NSA Cybersecurity Year in Review” that encapsulates the first year of operation for the newly created part of the NSA.
    • Highlights include:
      • In 2020, NSA focused on modernizing encryption across the Department of Defense (DOD). It began with a push to eliminate cryptography that is at risk from attack due to adversarial computational advances. This applied to several systems commonly used by the Armed Services today to provide command and control, critical communications, and battlefield awareness. It also applied to operational practices concerning the handling of cryptographic keys and the implementation of modern suites of cryptography in network communications devices.
      • 2020 was notable for the number of Cybersecurity Advisories (CSAs) and other products NSA cybersecurity produced and released. These products are intended to alert network owners, specifically National Security System (NSS), Department of Defense (DOD), and Defense Industrial Base (DIB), of cyber threats and enable defenders to take immediate action to secure their systems.
      • 2020 was notable not just because it was the NSA Cybersecurity Directorate’s first year nor because of COVID-19, but also because it was an election year in the United States. Drawing on lessons learned from the 2016 presidential election and the 2018 mid-term elections, NSA was fully engaged in whole-of-government efforts to protect 2020 election from foreign interference and influence. Cybersecurity was a foundational component of NSA’s overall election defense effort.
      • This past year, NSA cybersecurity prioritized public-private collaboration, invested in cybersecurity research, and made a concerted effort to build trusted partnerships with the cybersecurity community.
      • The NSA touted the following achievements:
        • In November 2019, NSA began laying the groundwork to conduct a pilot with the Defense Cyber Crime Center and five DIB companies to monitor and block malicious network traffic based on continuous automated analysis of the domain names these companies’ networks were contacting. The pilot’s operational phase commenced in March 2020. Over six months, the Protective Domain Name Service (PDNS) examined more than 4 billion DNS queries to and from these companies. The PDNS provider identified callouts to 3,519 malicious domains and blocked upwards of 13 million connections to those domains. The pilot proved the value of DoD expanding the PDNS service to all DIB entities at scale
        • How cyber secure is cyber “ready” for combat? In response to legislation that recognized the imperative of protecting key weapons and space systems from adversary cyber intrusions, NSA partnered closely with the DoD CIO, Joint Staff, Undersecretary of Defense for Acquisition & Sustainment, and the Military Services to structure, design, and execute a new cybersecurity program, focused on the most important weapons and space systems, known as the Strategic Cybersecurity Program (SCP), with the mindset of “stop assessing and start addressing.”The program initially identified 12 key weapons and space systems that must be evaluated for cybersecurity vulnerabilities that need to be mitigated. This is either due to the existence of intelligence indicating they are being targeted by cyber adversaries or because the systems are particularly important to warfighting. These systems cover all warfighting domains (land, sea, air, cyber, and space). Under the auspices of the SCP, NSA and military service partners will conduct cybersecurity evaluations, and, most importantly, maintain cyber risk scoreboards and mitigation plans accountability in reducing cyber risk to acceptable levels
      • The NSA sees the following issue son the horizon:
        • In October 2020, NSA launched an expansive effort across the Executive Branch to understand how we can better inform, drive, and understand the activities of NSS owners to prevent, or respond to, critical cybersecurity events, and cultivate an operationally-aligned community resilient against the most advanced threats. These efforts across the community will come to fruition during the first quarter of 2021 and are expected to unify disparate elements across USG for stronger cybersecurity at scale.
        • NSA Cybersecurity is also focused on combating ransomware, a significant threat to NSS and critical infrastructure. Ransomware activity has become more destructive and impactful in nature and scope. Malicious actors target critical data and propagate ransomware across entire networks, alarmingly focusing recent attacks against U.S. hospitals. In 2020, NSA formed multiple working groups with U.S. Government agencies and other partners to identify ways to make ransomware operations more difficult for our adversaries, less scalable, and less lucrative. While the ransomware threat remains significant, NSA will continue to develop innovative ways to keep the activity at bay.
  • This week, Parler sued Amazon after it rescinded its web hosting services to the social media platform billed as the conservative, unbiased alternative to Twitter. Amazon has responded with an extensive list of the inflammatory, inciting material upon which it based its decision.
    • In its 11 January complaint, Parler asked a federal court “for injunctive relief, including a temporary restraining order and preliminary injunctive relief, and damages” because mainly “AWS’s decision to effectively terminate Parler’s account is apparently motivated by political animus…[and] is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter” in violation of federal antitrust law.
    • In its 12 January response, Amazon disagreed:
      • This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (“AWS”) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. There is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that its content violated the parties’ agreement, requested removal, and reviewed Parler’s plan to address the problem, only to determine that Parler was both unwilling and unable to do so. AWS suspended Parler’s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.
    • Amazon offered a sampling of the content on Parler that caused AWS to pull the plug on the platform:
      • “Fry’em up. The whole fkn crew. #pelosi #aoc #thesquad #soros #gates #chuckschumer #hrc #obama #adamschiff #blm #antifa we are coming for you and you will know it.”
      • “#JackDorsey … you will die a bloody death alongside Mark Suckerturd [Zuckerberg]…. It has been decided and plans are being put in place. Remember the photographs inside your home while you slept? Yes, that close. You will die a sudden death!”
      • “We are going to fight in a civil War on Jan.20th, Form MILITIAS now and acquire targets.”
      • “On January 20th we need to start systematicly [sic] assassinating [sic] #liberal leaders, liberal activists, #blm leaders and supporters, members of the #nba #nfl #mlb #nhl #mainstreammedia anchors and correspondents and #antifa. I already have a news worthy event planned.”
      • Shoot the police that protect these shitbag senators right in the head then make the senator grovel a bit before capping they ass.”

Coming Events

  • On 13 January, the Federal Communications Commission (FCC) will hold its monthly open meeting, and the agency has placed the following items on its tentative agenda “Bureau, Office, and Task Force leaders will summarize the work their teams have done over the last four years in a series of presentations:
    • Panel One. The Commission will hear presentations from the Wireless Telecommunications Bureau, International Bureau, Office of Engineering and Technology, and Office of Economics and Analytics.
    • Panel Two. The Commission will hear presentations from the Wireline Competition Bureau and the Rural Broadband Auctions Task Force.
    • Panel Three. The Commission will hear presentations from the Media Bureau and the Incentive Auction Task Force.
    • Panel Four. The Commission will hear presentations from the Consumer and Governmental Affairs Bureau, Enforcement Bureau, and Public Safety and Homeland Security Bureau.
    • Panel Five. The Commission will hear presentations from the Office of Communications Business Opportunities, Office of Managing Director, and Office of General Counsel.
  • On 15 January, the Senate Intelligence Committee will hold a hearing on the nomination of Avril Haines to be the Director of National Intelligence.
  • The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Alejandro N. Mayorkas to be Secretary of Homeland Security on 19 January.
  • On 19 January, the Senate Armed Services Committee will hold a hearing on former General Lloyd Austin III to be Secretary of Defense.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

Preview of Senate Democratic Chairs

It’s not clear who will end up where, but new Senate chairs will change focus and agenda of committees and debate over the next two years.

With the victories of Senators-elect Rafael Warnock (D-GA) and Jon Ossoff (D-GA), control of the United States Senate will tip to the Democrats once Vice President-elect Kamala Harris (D) is sworn in and can break the 50-50 tie in the chamber in favor of the Democrats. With the shift in control, new chairs will take over committees key to setting the agenda over the next two years in the Senate. However, given the filibuster, and the fact that Senate Republicans will exert maximum leverage through its continued use, Democrats will be hamstrung and forced to work with Republicans on matters such as federal privacy legislation, artificial intelligence (AI), the Internet of Things (IOT), cybersecurity, data flows, surveillance, etc. just as Republicans have had to work with Democrats over the six years they controlled the chamber. Having said that, Democrats will be in a stronger position than they had been and will have the power to set the agenda in committee hearings, being empowered to call the lion’s share of witnesses and to control the floor agenda. What’s more, Democrats will be poised to confirm President-elect Joe Biden’s nominees at agencies like the Federal Communications Commission (FCC), Federal Trade Commission (FTC), the Department of Justice (DOJ), and others, giving the Biden Administration a free hand in many areas of technology policy.

All of that being said, this is not meant to be an exhaustive look at all the committees of jurisdiction and possible chairs. Rather, it seeks to survey likely chairs on selected committees and some of their priorities for the next two years. Subcommittee chairs will also be important, but until the cards get shuffled among the chairs, it will not be possible to see where they land at the subcommittee level.

When considering the possible Democratic chairs of committees, one must keep in mind it is often a matter of musical chairs with the most senior members getting first choice. And so, with Senator Patrick Leahy (D-VT) as the senior-most Democratic Senator, he may well choose to leave the Appropriations Committee and move back to assume the gavel of the Judiciary Committee. Leahy has long been a stakeholder on antitrust, data security, privacy, and surveillance legislation and would be in a position to influence what bills on those and other matters before the Senate look like. If Leahy does not move to the chair on Judiciary, he may still be entitled to chair a subcommittee and exert influence.

If Leahy stays put, then current Senate Minority Whip Dick Durbin (D-IL) would be poised to leapfrog Senator Dianne Feinstein (D-CA) to chair Judiciary after Feinstein was persuaded to step aside on account of her lackluster performance in a number of high-profile hearings in 2020. Durbin has also been active on privacy, data security, and surveillance issues. The Judiciary Committee will be central to a number of technology policies, including Foreign Intelligence Surveillance Act reauthorization, privacy legislation, Section 230 reform, antitrust, and others. On the Republican side of the dais, Senator Lindsey Graham (R-SC) leaving the top post because of term limit restrictions imposed by Republicans, and Senator Charles Grassley (R-IA) is set to replace him. How this changes the 47 USC 230 (Section 230) debate is not immediately clear. And yet, Grassley and three colleagues recently urged the Trump Administration in a letter to omit language in a trade agreement with the United Kingdom (UK) that mirrors the liability protection Section 230. Senators Rob Portman (R-OH), Mark R. Warner (D-VA), Richard Blumenthal (D-CT), and Grassley argued to U.S. Trade Representative Ambassador Robert Lighthizer that a “safe harbor” like the one provided to technology companies for hosting or moderating third party content is outdated, not needed in a free trade agreement, contrary to the will of both the Congress and UK Parliament, and likely to be changed legislatively in the near future. It is likely, however, Grassley will fall in with other Republicans propagating the narrative that social media is unfairly biased against conservatives, particularly in light of the recent purge of President Donald Trump for his many, repeated violations of policy.

The Senate Judiciary Committee will be central in any policy discussions of antitrust and anticompetition in the technology realm. But it bears note the filibuster (and the very low chances Senate Democrats would “go nuclear” and remove all vestiges of the functional supermajority requirement to pass legislation) will give Republicans leverage to block some of the more ambitious reforms Democrats might like to enact (e.g. the House Judiciary Committee’s October 2020 final report that calls for nothing less than a complete remaking of United States (U.S.) antitrust policy and law; see here for more analysis.)

It seems Senator Sherrod Brown (D-OH) will be the next chair of the Senate Banking, Housing, and Urban Development Committee which has jurisdiction over cybersecurity, data security, privacy, and other issues in the financial services sector, making it a player on any legislation designed to encompass the whole of the United States economy. Having said that, it may again be the case that sponsors of, say, privacy legislation decide to cut the Gordian knot of jurisdictional turf battles by cutting out certain committees. For example, many of the privacy bills had provisions making clear they would deem financial services entities in compliance with the Financial Services Modernization Act of 1999 (P.L. 106-102) (aka Gramm-Leach-Bliley) to be in compliance with the new privacy regime. I suppose these provisions may have been included on the basis of the very high privacy and data security standards Gramm-Leach-Bliley has brought about (e.g. the Experian hack), or sponsors of federal privacy legislation made the strategic calculation to circumvent the Senate Banking Committee as much as they can. Nonetheless, this committee has sought to insert itself into the policymaking process on privacy last year as Brown and outgoing Chair Mike Crapo (R-ID) requested “feedback” in February 2019 “from interested stakeholders on the collection, use and protection of sensitive information by financial regulators and private companies.” Additionally, Brown released what may be the most expansive privacy bill from the perspective of privacy and civil liberties advocates, the “Data Accountability and Transparency Act of 2020” in June 2020 (see here for my analysis.) Therefore, Brown may continue to push for a role in federal privacy legislation with a gavel in his hands.

In a similar vein, Senator Patty Murray (D-WA) will likely take over the Senate Health, Education, Labor, and Pensions (HELP) Committee which has jurisdiction over health information privacy and data security through the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act). Again, as with the Senate Banking Committee and Gramm-Leach-Bliley, most of the privacy bills exempt HIPAA-compliant entities. And yet, even if her committee is cut out of a direct role in privacy legislation, Murray will still likely exert influence through oversight of and possible legislation changing HIPAA regulations and the Department of Health and Human Services (HHS) enforcement and rewriting of these standards for most of the healthcare industry. For example, HHS is rushing a rewrite of the HIPAA regulations at the tail end of the Trump Administration, and Murray could be in a position to inform how the Biden Administration and Secretary of Health and Human Services-designate Xavier Berra handles this rulemaking. Additionally, Murray may push the Office of Civil Rights (OCR), the arm of HHS that writes and enforces these regulations, to prioritize matters differently.

Senator Maria Cantwell (D-WA) appears to be the next chair of the Senate Commerce, Science, and Transportation Committee and arguably the largest technology portfolio in the Senate. It is the primary committee of jurisdiction for the FCC, FTC, National Telecommunications and Information Administration (NTIA), the National Institute of Standards and Technology (NIST), and the Department of Commerce. Cantwell may exert influence on which people are nominated to head and staff those agencies and others. Her committee is also the primary committee of jurisdiction for domestic and international privacy and data protection matters. And so, federal privacy legislation will likely be drafted by this committee, and legislative changes so the U.S. can enter into a new personal data sharing agreement with the European Union (EU) would also likely involve her and her committee.

Cantwell and likely next Ranking Member Roger Wicker (R-MS) agree on many elements of federal privacy law but were at odds last year on federal preemption and whether people could sue companies for privacy violations. Between them, they circulated three privacy bills. In September 2020, Wicker and three Republican colleagues introduced the “Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act” (S.4626) (see here for more analysis). Wicker had put out for comment a discussion draft, the “Consumer Data Privacy Act of 2019” (CDPA) (See here for analysis) in November 2019 shortly after the Ranking Member on the committee, Senator Maria Cantwell (D-WA) and other Democrats had introduced their privacy bill, the “Consumer Online Privacy Rights Act“ (COPRA) (S.2968) (See here for more analysis).

Cantwell could also take a leading role on Section 230, but her focus, of late, seems to be on how technology companies are wreaking havoc to traditional media. released a report that she has mentioned during her opening statement at the 23 September hearing aimed at trying to revive data privacy legislation. She and her staff investigated the decline and financial troubles of local media outlets, which are facing a cumulative loss in advertising revenue of up to 70% since 2000. And since advertising revenue has long been the life blood of print journalism, this has devastated local media with many outlets shutting their doors or radically cutting their staff. This trend has been exacerbated by consolidation in the industry, often in concert with private equity or hedge funds looking to wring the last dollars of value from bargain basement priced newspapers. Cantwell also claimed that the overwhelming online advertising dominance of Google and Facebook has further diminished advertising revenue and other possible sources of funding through a variety of means. She intimates that much of this content may be illegal under U.S. law, and the FTC may well be able to use its Section 5 powers against unfair and deceptive acts and its anti-trust authority to take action. (see here for more analysis and context.) In this vein, Cantwell will want her committee to play in any antitrust policy changes, likely knowing massive changes in U.S. law are not possible in a split Senate with entrenched party positions and discipline.

Senator Jack Reed (D-RI) will take over the Senate Armed Services Committee and its portfolio over national security technology policy that includes the cybersecurity, data protection and supply chain of national security agencies and their contractors, AI, offensive and defensive U.S. cyber operations, and other realms. Much of the changes Reed and his committee will seek to make will be through the annual National Defense Authorization Act (NDAA) (see here and here for the many technology provisions in the FY 2021 NDAA.) Reed may also prod the Department of Defense (DOD) to implement or enforce the Cybersecurity Maturity Model Certification (CMMC) Framework differently than envisioned and designed by the Trump Administration. In December 2020, a new rule took effect designed to drive better cybersecurity among U.S. defense contractors. This rule brings together two different lines of effort to require the Defense Industrial Base (DIB) to employ better cybersecurity given the risks they face by holding and using classified information, Federal Contract Information (FCI) and Controlled Unclassified Information (CUI). The Executive Branch has long wrestled with how to best push contractors to secure their systems, and Congress and the White House have opted for using federal contract requirements in that contractors must certify compliance. However, the most recent initiative, the CMMC Framework will require contractors to be certified by third party assessors. And yet, it is not clear the DOD has wrestled with the often-misaligned incentives present in third party certification schemes.

Reed’s committee will undoubtedly delve deep into the recent SolarWinds hack and implement policy changes to avoid a reoccurrence. Doing so may lead the Senate Armed Services Committee back to reconsidering the Cyberspace Solarium Commission’s (CSC) March 2020 final report and follow up white papers, especially their views embodied in “Building a Trusted ICT Supply Chain.”

Senator Mark Warner (D-VA) will likely take over the Senate Intelligence Committee. Warner has long been a stakeholder on a number of technology issues and would be able to exert influence on the national security components of such issues. He and his committee will almost certainly play a role in the Congressional oversight of and response to the SolarWinds hack. Likewise, his committee shares jurisdiction over FISA with the Senate Judiciary Committee and over national security technology policy with the Armed Services Committee.

Senator Amy Klobuchar (D-MN) would be the Senate Democratic point person on election security from her perch at the Senate Rules and Administration Committee, which may enable her to more forcefully push for the legislative changes she has long advocated for. In May 2019, Klobuchar and other Senate Democrats introduced the “Election Security Act” (S. 1540), the Senate version of the stand-alone measure introduced in the House that was taken from the larger package, the “For the People Act” (H.R. 1) passed by the House.

In August 2018, the Senate Rules and Administration Committee postponed indefinitely a markup on a compromise bill to provide states additional assistance in securing elections from interference, the “The Secure Elections Act” (S.2593). Reportedly, there was concern among state officials that a provision requiring audits of election results would be in effect an unfunded mandate even though this provision was softened at the insistence of Senate Republican leadership. However, a Trump White House spokesperson indicated in a statement that the Administration opposed the bill, which may have posed an additional obstacle to Committee action. However, even if the Senate had passed its bill, it was unlikely that the Republican controlled House would have considered companion legislation (H.R. 6663).

Senator Gary Peters (D-MI) may be the next chair of the Senate Homeland Security and Governmental Affairs Committee, and if so, he will continue to face the rock on which many the bark of cybersecurity legislation has been dashed: Senator Ron Johnson (R-WI). So significant has Johnson’s opposition been to bipartisan cybersecurity legislation from the House, some House Republican stakeholders have said so in media accounts not bothering to hide in anonymity. And so whatever Peters’ ambitions may be to shore up the cybersecurity of the federal government as his committee will play a role in investigating and responding to the Russian hack of SolarWinds and many federal agencies, he will be limited by whatever Johnson and other Republicans will allow to move through the committee and through the Senate. Of course, Peters’ purview would include the Department of Homeland Security and the Cybersecurity and Infrastructure Security Agency (CISA) and its remit to police the cybersecurity practices of the federal government. Peters would also have in his portfolio the information technology (IT) practices of the federal government, some $90 billion annually across all agencies.

Finally, whether it be Leahy or Durbin at the Senate Appropriations Committee, this post allows for immense influence in funding and programmatic changes in all federal programs through the power of the purse Congress holds.

Further Reading, Other Developments, and Coming Events (11 January 2021)

Further Reading

  • Why the Russian hack is so significant, and why it’s close to a worst-case scenario” By Kevin Collier — NBC News. This article quotes experts who paint a very ugly picture for the United States (U.S.) in trying to recover from the Russian Federation’s hack. Firstly, the Russians are very good at what they do and likely built multiple backdoors in systems they would want to ensure they have access to after using SolarWinds’ update system to gain initial entry. Secondly, broadly speaking, at present, U.S. agencies and companies have two very unpalatable options: spend months hunting through their systems for any such backdoors or other issues or rebuild their systems from scratch. The ramifications of this hack will continue to be felt well into the Biden Administration.
  • The storming of Capitol Hill was organized on social media.” By Sheera Frenkel — The New York Times. As the repercussions of the riot and apparently attempted insurrection continue to be felt, one aspect that has received attention and will continue to receive attention is the role social media platforms played. Platforms used predominantly by right wing and extremist groups like Gab and Parler were used extensively to plan and execute the attack. This fact and the ongoing content moderation issues at larger platforms will surely inform the Section 230 and privacy legislation debates expected to occur this year and into the future.
  • Comcast data cap blasted by lawmakers as it expands into 12 more states” By Jon Brodkin — Ars Technica. Comcast has extended to other states its 1.2TB cap on household broadband usage, and lawmakers in Massachusetts have written the company, claiming this will hurt low-income families working and schooling children at home. Comcast claims this affects only a small class of subscribers, so-called “super users.” Such a move always seemed in retrospect as data is now the most valuable commodity.
  • Finnish lawmakers’ emails hacked in suspected espionage incident” By Shannon Vavra — cyberscoop. Another legislature of a democratic nation has been hacked, and given the recent hacks of Norway’s Parliament and Germany’s Bundestag by the Russians, it may well turn out they were behind this hack that “obtain[ed] information either to benefit a foreign state or to harm Finland” according to Finland’s National Bureau of Investigation.
  • Facebook Forced Its Employees To Stop Discussing Trump’s Coup Attempt” By Ryan Mac — BuzzFeed News. Reportedly, Facebook shut down internal dialogue about the misgivings voiced by employees about its response to the lies in President Donald Trump’s video and the platform’s role in creating the conditions that caused Trump supporters to storm the United States (U.S.) Capitol. Internally and externally, Facebook equivocated on whether it would go so far as Twitter in taking down Trump’s video and content.
  • WhatsApp gives users an ultimatum: Share data with Facebook or stop using the app” By Dan Goodin — Ars Technica. Very likely in response to coming changes to the Apple iOS that will allow for greater control of privacy, Facebook is giving WhatsApp users a choice: accept our new terms of service that allows personal data to be shared with and used by Facebook or have your account permanently deleted.
  • Insecure wheels: Police turn to car data to destroy suspects’ alibis” By Olivia Solon — NBC News. Like any other computerized, connected device, cars are increasingly a source law enforcement (and likely intelligence agencies) are using to investigate crimes. If you sync your phone via USB or Bluetooth, most modern cars will access your phone and store all sorts of personal data that can later be accessed. But, other systems in cars can tell investigators where the car was, how heavy it was (i.e. how many people), when doors opened, etc. And, there are not specific federal or state laws in the United States to mandate protection of these data.

Other Developments

  • The Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), the Office of the Director of National Intelligence (ODNI), and the National Security Agency (NSA) issued a joint statement, finally naming the Russian Federation as the likely perpetrator of the massive SolarWinds hack. However, the agencies qualified the language, claiming:
    • This work indicates that an Advanced Persistent Threat (APT) actor, likely Russian in origin, is responsible for most or all of the recently discovered, ongoing cyber compromises of both government and non-governmental networks. At this time, we believe this was, and continues to be, an intelligence gathering effort.
      • Why the language is not more definitive is not clear. Perhaps the agencies are merely exercising caution about whom is blamed for the attack. Perhaps the agencies do not want to anger a White House and President averse to reports of Russian hacking for fear it will be associated with the hacking during the 2016 election that aided the Trump Campaign.
      • However, it is noteworthy the agencies are stating their belief the hacking was related to “intelligence gathering,” suggesting the purpose of the incursions was not to destroy data or launch an attack. Presumably, such an assertion is meant to allays concerns that the Russian Federation intends to attack the United States (U.S.) like it did in Ukraine and Georgia in the last decade.
    • The Cyber Unified Coordination Group (UCG) convened per Presidential Policy Directive (PPD) 41 (which technically is the FBI, CISA, and the ODNI but not the NSA) asserted its belief that
      • of the approximately 18,000 affected public and private sector customers of SolarWinds’ Orion products, a much smaller number has been compromised by follow-on activity on their systems. We have so far identified fewer than 10 U.S. government agencies that fall into this category, and are working to identify the nongovernment entities who also may be impacted.
      • These findings are, of course, preliminary, and there may be incentives for the agencies to be less than forthcoming about what they know of the scope and impact of the hacking.
  • Federal Communications Commission (FCC) Chair Ajit Pai has said he will not proceed with a rulemaking to curtail 47 USC 230 (Section 230) in response to a petition the National Telecommunications and Information Administration (NTIA) filed at the direction of President Donald Trump. Pai remarked “I do not intend to move forward with the notice of proposed rule-making at the FCC” because “in part, because given the results of the election, there’s simply not sufficient time to complete the administrative steps necessary in order to resolve the rule-making.” Pai cautioned Congress and the Biden Administration “to study and deliberate on [reforming Section 230] very seriously,” especially “the immunity provision.”  
    • In October, Pai had announced the FCC would proceed with a notice and comment rulemaking based on the NTIA’s petition asking the agency to start a rulemaking to clarify alleged ambiguities in 47 USC 230 regarding the limits of the liability shield for the content others post online versus the liability protection for “good faith” moderation by the platform itself. The NTIA was acting per direction in an executive order allegedly aiming to correct online censorship. Executive Order 13925, “Preventing Online Censorship” was issued in late May after Twitter factchecked two of President Donald Trump’s Tweets regarding false claims made about mail voting in California in response to the COVID-19 pandemic.
  • A House committee released its most recent assessment of federal cybersecurity and information technology (IT) assessment. The House Oversight Committee’s Government Operations Subcommittee released its 11th biannual scorecard under the “Federal Information Technology Acquisition Reform Act (FITARA). The subcommittee stressed this “marks the first time in the Scorecard’s history that all 24 agencies included in the law have received A’s in a single category” and noted it is “the first time that a category will be retired.” Even though this assessment is labeled the FITARA Scorecard, it is actually a compilation of different metrics borne of other pieces of legislation and executive branch programs.
    • Additionally, 19 of the 24 agencies reviewed received A’s on the Data Center Optimization Initiative (DCOI)
    • However, four agencies received F’s on Agency Chief Information Officer (CIO) authority enhancements, measures aiming to fulfill one of the main purposes of FITARA: empowering agency CIOs as a means of controlling and managing better IT acquisition and usage. It has been an ongoing struggle to get agency compliance with the letter and spirit of federal law and directives to do just this.
    • Five agencies got F’s and two agencies got D’s for failing to hit the schedule for transitioning off of the “the expiring Networx, Washington Interagency Telecommunications System (WITS) 3, and Regional Local Service Agreement (LSA) contracts” to the General Services Administration’s $50 billion Enterprise Infrastructure Solutions (EIS). The GSA explained this program in a recent letter:
      • After March 31, 2020, GSA will disconnect agencies, in phases, to meet the September 30, 2022 milestone for 100% completion of transition. The first phase will include agencies that have been “non-responsive” to transition outreach from GSA. Future phases will be based on each agency’s status at that time and the individual circumstances impacting that agency’s transition progress, such as protests or pending contract modifications. The Agency Transition Sponsor will receive a notification before any services are disconnected, and there will be an opportunity for appeal.
  • A bipartisan quartet of United States Senators urged the Trump Administration in a letter to omit language in a trade agreement with the United Kingdom (UK) that mirrors the liability protection in 47 U.S.C. 230 (Section 230). Senators Rob Portman (R-OH), Mark R. Warner (D-VA), Richard Blumenthal (D-CT), and Charles E. Grassley (R-IA) argued to U.S. Trade Representative Ambassador Robert Lighthizer that a “safe harbor” like the one provided to technology companies for hosting or moderating third party content is outdated, not needed in a free trade agreement, contrary to the will of both the Congress and UK Parliament, and likely to be changed legislatively in the near future. However, left unsaid in the letter, is the fact that Democrats and Republicans generally do not agree on how precisely to change Section 230. There may be consensus that change is needed, but what that change looks like is still a matter much in dispute.
    • Stakeholders in Congress were upset that the Trump Administration included language modeled on Section 230 in the United States-Mexico-Canada Agreement (USMCA), the modification of the North American Free Trade Agreement (NAFTA). For example, House Energy and Commerce Committee Chair Frank Pallone Jr (D-NJ) and then Ranking Member Greg Walden (R-OR) wrote Lighthizer, calling it “inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing” in Congress.
  • The Trump White House issued a new United States (U.S.) government strategy for advanced computing to replace the 2019 strategy. The “PIONEERING THE FUTURE ADVANCED COMPUTING ECOSYSTEM: A STRATEGIC PLAN” “envisions a future advanced computing ecosystem that provides the foundation for continuing American leadership in science and engineering, economic competitiveness, and national security.” The Administration asserted:
    • It develops a whole-of-nation approach based on input from government, academia, nonprofits, and industry sectors, and builds on the objectives and recommendations of the 2019 National Strategic Computing Initiative Update: Pioneering the Future of Computing. This strategic plan also identifies agency roles and responsibilities and describes essential operational and coordination structures necessary to support and implement its objectives. The plan outlines the following strategic objectives:
      • Utilize the future advanced computing ecosystem as a strategic resource spanning government, academia, nonprofits, and industry.
      • Establish an innovative, trusted, verified, usable, and sustainable software and data ecosystem.
      • Support foundational, applied, and translational research and development to drive the future of advanced computing and its applications.
      • Expand the diverse, capable, and flexible workforce that is critically needed to build and sustain the advanced computing ecosystem.
  • A federal court threw out a significant portion of a suit Apple brought against a security company, Corellium, that offers technology allowing security researchers to virtualize the iOS in order to undertake research. The United States District Court for the Southern District of Florida summarized the case:
    • On August 15, 2019, Apple filed this lawsuit alleging that Corellium infringed Apple’s copyrights in iOS and circumvented its security measures in violation of the federal Digital Millennium Copyright Act (“DMCA”). Corellium denies that it has violated the DMCA or Apple’s copyrights. Corellium further argues that even if it used Apple’s copyrighted work, such use constitutes “fair use” and, therefore, is legally permissible.
    • The court found “that Corellium’s use of iOS constitutes fair use” but did not for the DMCA claim, thus allowing Apple to proceed with that portion of the suit.
  • The Trump Administration issued a plan on how cloud computing could be marshalled to help federally funded artificial intelligence (AI) research and development (R&D). A select committee made four key recommendations that “should accelerate the use of cloud resources for AI R&D: 1)launch and support pilot projects to identify and explore the advantages and challenges associated with the use of commercial clouds in conducting federally funded AI research; (2) improve education and training opportunities to help researchers better leverage cloud resources for AI R&D; (3) catalog best practices in identity management and single-sign-on strategies to enable more effective use of the variety of commercial cloud resources for AI R&D; and (4) establish and publish best practices for the seamless use of different cloud platforms for AI R&D. Each recommendation, if adopted, should accelerate the use of cloud resources for AI R&D.”

Coming Events

  • On 13 January, the Federal Communications Commission (FCC) will hold its monthly open meeting, and the agency has placed the following items on its tentative agenda “Bureau, Office, and Task Force leaders will summarize the work their teams have done over the last four years in a series of presentations:
    • Panel One. The Commission will hear presentations from the Wireless Telecommunications Bureau, International Bureau, Office of Engineering and Technology, and Office of Economics and Analytics.
    • Panel Two. The Commission will hear presentations from the Wireline Competition Bureau and the Rural Broadband Auctions Task Force.
    • Panel Three. The Commission will hear presentations from the Media Bureau and the Incentive Auction Task Force.
    • Panel Four. The Commission will hear presentations from the Consumer and Governmental Affairs Bureau, Enforcement Bureau, and Public Safety and Homeland Security Bureau.
    • Panel Five. The Commission will hear presentations from the Office of Communications Business Opportunities, Office of Managing Director, and Office of General Counsel.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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IC Concedes PATRIOT Act Used To Collect Browsing

The top U.S. intelligence official admits the PATRIOT Act has been used to surveil a website and its visitors. This admission could result in a narrowing of FISA to stop this and related practices.

In a follow-on letter to correct his previous letter the Director of National Intelligence (DNI) acknowledged the Federal Bureau of Investigation (FBI) has indeed used Section 215 of the PATRIOT Act to surveil a website and its users. The Senate came within one vote of adding language to the bill to reauthorize and reform the Foreign Intelligence Surveillance Act (FISA) barring the use of this provision to surveil web browsing and internet search histories. It is possible this revelation will sway the Congress and the Biden Administration to enact such a change when they turn to these and other lapsed FISA authorities next year. At present, FISA reauthorization seems very improbable under the current administration given the President’s animus for the FISA process that was used to surveil the contacts between his 2016 Campaign advisors and Russian intelligence operatives.

DNI John Ratcliffe conceded in a 25 November letter to Senator Ron Wyden (D-OR) that web browsing has been the subject of at least one FISA application and production. Ratcliffe stated “the Department of Justice provided additional information to my office indicating that one of those 61 orders [issued pursuant to applications under Title V of FISA in 2019] resulted in the production of information that could be characterized as information regarding browsing.” He added “[s]pecifically, as relevant to an authorized investigation to obtain foreign intelligence information, the order directed the production of log entries for a single, identified U.S. web page reflecting connections from IP addresses registered in a specified foreign country that occurred during a defined period of time.” Of course, Ratcliffe only referenced searches in 2019, and so, it is an open question as to how many FISA searches authorized under Section 215 authority have been conducted in recent years for web browsing and internet search histories.

In his 20 May letter to the then DNI, Wyden explained:

  • I am writing to inquire whether public reporting on the use of Section 215 of the PATRIOT Act would capture the government’s collection of web browsing and internet searches. As you know, on May 13, 2020, 59 U.S. Senators voted to prohibit this form of warrantless surveillance, reflecting the broad, bipartisan view that it represents a dangerous invasion of Americans’ privacy.
  • There have also been long-standing concerns about the inadequacy of public reporting on the use of Section 215, including whether the data released annually by the DNI adequately captures the extent of the government’s collection activities and its impact on Americans. These concerns are magnified by the lack of clarity as to how the public reporting requirements would apply to web browsing and internet searches.

In a statement to the New York Times, Wyden argued “the DNI has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.” Apparently, Ratcliffe’s follow-on letter was a result of the newspaper’s reporters pressing the DNI on how it was defining web browsing. And yet, Ratcliffe refused to answer other questions about whether these practices occurred before 2019 or in 2020 because his letter is specific only to 2019.

The amendment Wyden referred to was considered earlier this year when the House, Senate, and White House seemed close to a deal to extend Section 215 and two other related surveillance provisions that had lapsed. That amendment would have barred the use of this FISA exception to the Fourth Amendment to surveil search histories, web browsing, location and GPS data. If all Senators had been present and voting, it would have likely been added to the bill, suggesting it will be added when FISA reauthorization is addressed next year. However, a compromise provision in the House was narrower than the Wyden/Daines amendment, which caused Wyden to announce his opposition to that language. Hence, there remains work on finding language acceptable to stakeholders in Congress and the Biden Administration.

In March, the House passed “USA FREEDOM Reauthorization Act of 2020” (H.R. 6172) by a 278-136 vote to reauthorize three expiring FISA provisions used by the National Security Agency (NSA) primarily to conduct surveillance: the business records exception, roving wiretaps, and the “lone wolf” provision. These authorities had been extended in December 2019 to March 15, 2020. However, the Senate did not act immediately on the bill and opted instead to send a 77-day extension of these now lapsed authorities to the House, which did not to take up the bill. The Senate was at an impasse on how to proceed, for some Members did not favor the House reforms while others wanted to implement further changes to the FISA process. Consequently, Senate Majority Leader Mitch McConnell (R-KY) promised amendment votes when the Senate took up H.R.6172.

Moreover, H.R. 6172 ends the NSA’s ability to use the so-called call detail record (CDR) program that had allowed the agency to access data on many billions of calls. Nonetheless, the NSA shut down the program in 2018 due to what it termed technical problems. This closure of the program was included in the bill even though the Trump Administration had explicitly requested it also be reauthorized.

As mentioned, H.R. 6172 would reauthorize the business records exception, which includes “any tangible thing,” in FISA first instituted in the USA PATRIOT Act in 2001 but would reform certain aspects of the program. For example, if the Federal Bureau of Investigation (FBI) or NSA is seeking a business record under FISA for which a law enforcement agency would need to obtain a warrant, then the FBI or NSA will also need to obtain a warrant. Currently, this is not the case. Additionally, under H.R.6172, the FISA application process under Section 215 could not be used to obtain a person’s cell site location or GPS information. However, the FBI or NSA would still be able to use Title I of FISA to seek cell site location or GPS data for purposes of conducting electronic surveillance related to alleged foreign intelligence. The bill would require that prosecutors must inform defendants of the evidence derived from electronic surveillance unless doing so would harm national security.

Moreover, records obtained under Section 215 could be retained no longer than five years subject to a number of exceptions that may serve to make this limitation a dead letter. For example, if such records are deemed to have a “secret meaning” or are certified by the FBI as being vital to national security, then such records may be held longer than five years. Given the tendency of agencies to read their authority as broadly as possible and the past record of Intelligence Community (IC) agencies, it is likely these authorities will be stretched as far as legally possible. It bears note that all restrictions are prospective, meaning that current, ongoing uses of Section 215 would be exempted. The business records provision would be extended until December 1, 2023 as are the other two expiring authorities that permit so-called roving wiretaps and allow for surveillance of so-called “lone wolves.”

For FISA applications under Title I (i.e., electronic surveillance), any agency seeking a FISA order to surveil will need to disclose to the FISA court any information that may call into question the accuracy of the application or any doubtful information. Moreover, certain FISA applications to surveil Americans or residents would need to spell out the proposed investigative techniques to the FISA court. Moreover, any FISA application targeting U.S. officials or candidates for federal office must be approved by the Attorney General in writing before they can be submitted. H.R.6172 would permit the suspension or removal of any federal official, employee, or contractor for misconduct before the FISA court and increases criminal liability for violating FISA from five to eight years. Most of these reforms seem aimed at those Members, many of whom are Republican, that were alarmed by the defects in the FISA surveillance process of Trump Campaign associate Cater Page as turned up by the Department of Justice’s Office of the Inspector General investigation. Some of these Members were opposed to the House Judiciary Committee’s initial bill, which they thought did not implement sufficient reforms to the larger FISA process.

In May, the Senate amended and passed H.R. 6172 by an 80-16 vote. Consideration of the bill was stalled in March when some Senators pushed for amendments, a demand to which the Senate Majority Leader finally agreed, provided these amendments would need 60 votes to be adopted. Consequently, once COVID-19 legislation had been considered, the Senate returned to H.R.6172, and debated and voted upon three amendments, one of which was agreed to.

Wyden and Senator Steve Daines (R-MT) offered an amendment to narrow the Section 215 exception to the Fourth Amendment’s requirement that a search requires a warrant. Section 215 currently allows for FISA court approved searches of business records and all tangible things in the course of a national security investigation, and the underlying text of H.R. 6172 would exclude cell site location and GPS location from Section 215. The Wyden/Daines amendment would also exclude web browsing and search engine histories.

As Wyden explained during debate,

With web browsing and searches, you are talking about some of the most intimate, some of the most personal, some of the most private details of the lives of Americans. Every thought that can come into people’s heads can be revealed in an internet search or in a visit to a website: their health histories, their medical fears, their political views, their romantic lives, their religious beliefs. Collecting this information is as close to reading minds as surveillance can get. It is the digital mining of the personal lives of the American people.

However, the amendment failed to reach the 60-vote threshold necessary for adoption under the rule of debate for H.R. 6172, failing by one vote as four Senators did not vote.

Two weeks later, when the House was gearing up to consider the Senate-amended version of H.R.6172, Representatives Zoe Lofgren (D-CA) and Warren Davidson (R-OH) submitted an amendment along the lines of the language Wyden and Daines proposed that the Senate rejected by one vote to bar the collection of web browsing and internet search history via a FISA order under Section 215. Lofgren and Davidson had negotiated with other House Democratic stakeholders on language acceptable to them.

Regarding their amendment, in their press release, Lofgren and Davidson claimed “[t]he amendment – which is supported by Reps. Adam Schiff, Chair of the House Permanent Select Committee on Intelligence, and Jerrold Nadler, Chair of the House Judiciary Committee – is an outright prohibition: the government will not be able to use Section 215 to collect the websites that a U.S. person visits, the videos that a U.S. person watches, or the search queries that a U.S. person makes…[and] [s]pecifically:

  • If the government is not sure if you’re a U.S. person, but you could be, the government cannot get your internet activity without a Title I FISA warrant.
  • If the government wants to order a service provider to produce a list of everyone who has visited a particular website, watched a particular video, or made a particular search query: the government cannot make that order unless it can guarantee that no U.S. persons’ IP addresses, device identifiers, or other identifiers will be disclosed to the government.
    • This amendment does not allow for the incidental collection of U.S. persons’ web browsing or search information when the target is a specific-selection term that would or could produce such information.
  • This prohibition is a strict liability-type provision. (It isn’t a knowledge standard or a reasonable-belief standard. An order must not result in the production of a U.S. person’s web browsing or search information.)
  • If the order would or could result in the production of a U.S. person’s web browsing or search information, the government cannot order it without a Title I FISA warrant that must be narrowly tailored toward the subject of the warrant.

It appeared this amendment would be made in order during debate, but opposition from both the left and right in the House and among stakeholders made this untenable. The fact that the Lofgren/Davidson amendment was narrower in that it would only provide this protection to people in the United States whereas the Wyden/Daines amendment would have outright barred the practice under FISA led to opposition on the left. Early on 27 May, Wyden supported this language, but when House Intelligence Committee Chair Adam Schiff (D-CA) suggested that intelligence agencies could continue to collect web browsing and search histories of Americans, Wyden withdrew his support. Thereafter, House Democratic Leadership ultimately decided against allowing this amendment to have a vote. Consequently, the effort to enact a FISA reauthorization collapsed.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Image by joffi from Pixabay

Further Reading, Other Developments, and Coming Events (10 December)

Further Reading

  • Social media superspreaders: Why Instagram, not Facebook, will be the real battleground for COVID-19 vaccine misinformation” By Isobel Asher Hamilton — Business Insider. According to one group, COVID-19 anti-vaccination lies and misinformation are proliferating on Instagram despite its parent company’s, Facebook, efforts to find and remove such content. There has been dramatic growth in such content on Instagram, and Facebook seems to be applying COVID-19 standards more loosely on Instagram. In fact, some people kicked off of Facebook for violating that platform’s standards on COVID-19 are still on Instagram spreading the same lies, misinformation, and disinformation. For example, British anti-vaccination figure David Icke was removed from Facebook for making claims that COVID-19 was caused by or related to 5G, but he has a significant following on Instagram.
  • ‘Grey area’: China’s trolling drives home reality of social media war” By Chris Zappone — The Sydney Morning Herald. The same concept that is fueling aggressive cyber activity at a level below outright war has spread to diplomacy. The People’s Republic of China (PRC) has been waging “gray” social media campaigns against a number of Western nations, including Australia, mainly be propagating lies and misinformation. The most recent example is the spreading a fake photo of an Australian soldier appearing to kill an Afghan child. This false material seems designed to distract from the real issues between the two nations arising from clashing policies on trade and human rights. The PRC’s activities do not appear to violate Australia’s foreign interference laws and seem to have left Canberra at a loss as to how to respond effectively.
  • Facebook to start policing anti-Black hate speech more aggressively than anti-White comments, documents show” By Elizabeth Dwoskin, Nitasha Tiku and Heather Kelly — The Washington Post. Facebook will apparently seek to revamp its algorithms to target the types of hate speech that have traditionally targeted women and minority groups. Up until now all attacks were treated equally so that something like “white people suck” would be treated the same way as anti-Semitic content. Facebook has resisted changes for years even though experts and civil rights groups made the case that people of color, women, and LGBTI people endure far more abuse online. There is probably no connection between Facebook’s more aggressive content moderation policies and the advent of a new administration in Washington more receptive to claims that social media platforms allow the abuse of these people.
  • How Joe Biden’s Digital Team Tamed the MAGA Internet” By Kevin Roose — The New York Times. Take this piece with a block of salt. The why they won articles are almost always rife with fallacies, including the rationale that if a candidate won, his or her strategy must have worked. It is not clear that the Biden Campaign’s online messaging strategy of being nice and emphasizing positive values actually beat the Trump Campaign’s “Death Star” so much as the President’s mishandling of the pandemic response and cratering of the economy did him in.
  • Coronavirus Apps Show Promise but Prove a Tough Sell” By Jennifer Valentino-DeVries — The New York Times. It appears the intersection of concerns about private and public sector surveillance from two very different groups has worked to keep down rates of adopting smartphone COVID tracking apps in the United States. There are people wary of private sector practices to hoover up as much data as possible, and others concerned about the government’s surveillance activities. Consequently, many are shunning Google and Apple’s COVID contact tracing apps to the surprise of government, industry, and academia. A pair of studies show resistance to downloading or using such apps even if there are very strong privacy safeguards. This result may well be a foreseeable outcome from U.S. policies that have allowed companies and the security services to collect and use vast quantities of personal information.
  • UAE target of cyber attacks after Israel deal, official says” — Reuters. A top cybersecurity official in the United Arab Emirates claimed his nation’s financial services industries were targeted for cyber attack and implied Iran and affiliated hackers were responsible.

Other Developments

  • President-elect Joe Biden announced his intention to nominate California Attorney General Xavier Becerra to serve as the next Secretary of Health and Human Services (HHS). If confirmed by the Senate, California Governor Gavin Newsom would name Becerra’s successor who would need to continue enforcement of the “California Consumer Privacy Act” (CCPA) (AB 375) while also working towards the transition to the “California Privacy Rights Act” (Proposition 24) approved by California voters last month. The new statute establishes the California Privacy Protection Agency that will assume the Attorney General’s responsibilities regarding the enforcement of California’s privacy laws. However, Becerra’s successor may play a pivotal role in the transition between the two regulators and the creation of the new regulations needed to implement Proposition 24.
  • The Senate approved the nomination of Nathan Simington to be a Commissioner of the Federal Communications Commission (FCC) by a 49-46 vote. Once FCC Chair Ajit Pai steps down, the agency will be left with two Democratic and two Republican Commissioners, pending the Biden Administration’s nominee to fill Pai’s spot. If the Senate stays Republican, it is possible the calculation could be made that a deadlocked FCC is better than a Democratic agency that could revive net neutrality rules among other Democratic and progressive policies. Consequently, Simington’s confirmation may be the first step in a FCC unable to develop substantive policy.
  • Another federal court has broadened the injunction against the Trump Administration’s ban on TikTok to encompass the entirety of the Department of Commerce’s September order meant to stop the usage of the application in the United States (U.S.) It is unclear as to whether the Trump Administration will appeal, and if it should, whether a court would decide the case before the Biden Administration begins in mid-January. The United States Court for the District of Columbia found that TikTok “established that  the government likely exceeded IEEPA’s express limitations as part of an agency action that was arbitrary and capricious” and would likely suffer irreparable harm, making an injunction an appropriate remedy.
  • The United States’ National Security Agency (NSA) “released a Cybersecurity Advisory on Russian state-sponsored actors exploiting CVE-2020-4006, a command-injection vulnerability in VMware Workspace One Access, Access Connector, Identity Manager, and Identity Manager Connector” and provided “mitigation and detection guidance.”
  • The United States (U.S.) Cybersecurity and Infrastructure Security Agency (CISA) and the Federal Bureau of Investigation (FBI) issued a joint alert, warning that U.S. think tanks are being targeted by “persistent continued cyber intrusions by advanced persistent threat (APT) actors.” The agencies stated “[t]his malicious activity is often, but not exclusively, directed at individuals and organizations that focus on international affairs or national security policy.” CISA and the FBI stated its “guidance may assist U.S. think tanks in developing network defense procedures to prevent or rapidly detect these attacks.” The agencies added:
    • APT actors have relied on multiple avenues for initial access. These have included low-effort capabilities such as spearphishing emails and third-party message services directed at both corporate and personal accounts, as well as exploiting vulnerable web-facing devices and remote connection capabilities. Increased telework during the COVID-19 pandemic has expanded workforce reliance on remote connectivity, affording malicious actors more opportunities to exploit those connections and to blend in with increased traffic. Attackers may leverage virtual private networks (VPNs) and other remote work tools to gain initial access or persistence on a victim’s network. When successful, these low-effort, high-reward approaches allow threat actors to steal sensitive information, acquire user credentials, and gain persistent access to victim networks.
    • Given the importance that think tanks can have in shaping U.S. policy, CISA and FBI urge individuals and organizations in the international affairs and national security sectors to immediately adopt a heightened state of awareness and implement the critical steps listed in the Mitigations section of this Advisory.
  • A group of Democratic United States Senators have written the CEO of Alphabet and Google about its advertising policies and how its platforms may have been used to spread misinformation and contribute to voter suppression. Thus far, most of the scrutiny about the 2020 election and content moderation policy has fallen on Facebook and Twitter even though Google-owned YouTube has been flagged as containing the same amount of misinformation. Senators Amy Klobuchar (D-MN) and Mark Warner (D-VA) led the effort and expressed “serious concerns regarding recent reports that Google is profiting from the sale of ads spreading election-related disinformation” to Alphabet and Google CEO Sundar Pichai. Klobuchar, Warner, and their colleagues asserted:
    • Google is also helping organizations spreading election-related disinformation to raise revenue by placing ads on their websites. While Google has some policies in place to prevent the spread of election misinformation, they are not properly enforced and are inadequate. We urge you to immediately strengthen and improve enforcement of your policies on election-related disinformation and voter suppression, reject all ads spreading election-related disinformation, and stop providing advertising services on sites that spread election-related disinformation.
    • …a recent study by the Global Disinformation Index (GDI) found that Google services ads on 145 out of 200 websites GDI examined that publish disinformation. 
    • Similarly, a recent report from the Center for Countering Digital Hate (CCDH) found that Google has been placing ads on websites publishing disinformation designed to undermine elections. In examining just six websites publishing election-related disinformation, CCDH estimates that they receive 40 million visits a month, generating revenue for these sites of up to $3.4 million annually from displaying Google ads. In addition, Google receives $1.6 million from the advertisers’ payments annually.  These sites published stories ahead of the 2020 general election that contained disinformation alleging that voting by mail was not secure, that mail-in voting was being introduced to “steal the election,” and that election officials were “discarding mail ballots.” 
  • A bipartisan group of United States Senators on one committee are urging Congressional leadership to include funding to help telecommunications companies remove and replace Huawei and ZTE equipment and to aid the Federal Communications Commission (FCC) in drafting accurate maps of broadband service in the United States (U.S.). Senate Commerce, Science, and Transportation Committee Chair Roger Wicker (R-MS) and a number of his colleagues wrote the leadership of both the Senate and House and argued:
    • we urge you to provide full funding for Public Law 116-124, the Secure and Trusted Communications Networks Act, and Public Law 116-130, the Broadband DATA Act.   
    • Closing the digital divide and winning the race to 5G are critical to America’s economic prosperity and global leadership in technology. However, our ability to connect all Americans and provide access to next-generation technology will depend in large part on the security of our communications infrastructure. The Secure and Trusted Communications Networks Act (“rip and replace”) created a program to help small, rural telecommunications operators remove equipment posing a security threat to domestic networks and replace it with equipment from trusted providers. This is a national security imperative. Fully funding this program is essential to protecting the integrity of our communications infrastructure and the future viability of our digital economy at large.
    • In addition to safeguarding the security of the nation’s communications systems, developing accurate broadband maps is also critically important. The United States faces a persistent digital divide, and closing this divide requires accurate maps that show where broadband is available and where it is not. Current maps overstate broadband availability, which prevents many underserved communities, particularly in rural areas, from receiving the funds needed to build or expand broadband networks to millions of unconnected Americans. Fully funding the Broadband DATA Act will ensure more accurate broadband maps and better stewardship over the millions of dollars the federal government awards each year to support broadband deployment. Without these maps, the government risks overbuilding existing networks, duplicating funding already provided, and leaving communities unserved.  
  • The Government Accountability Office (GAO) released an assessment of 5G policy options that “discusses (1) how the performance goals and expected uses are to be realized in U.S. 5Gwireless networks; (2) the challenges that could affect the performance or usage of 5G wireless networks in the U.S.; and (3) policy options to address these challenges.” The report had been requested by the chairs and ranking members of the House Armed Services, Senate Armed Services, Senate Intelligence, and House Intelligence Committees along with other Members. The GAO stated “[w]hile 5G is expected to deliver significantly improved network performance and greater capabilities, challenges may hinder the performance or usage of 5G technologies in the U.S. We grouped the challenges into the following four categories:
    • availability and efficient use of spectrum
    • security of 5G networks
    • concerns over data privacy
    • concerns over possible health effects
    • The GAO presented the following policy options along with opportunities and considerations for each:
      • Spectrum-Sharing Technologies Opportunities:
        • Could allow for more efficient use of the limited spectrum available for 5G and future generations of wireless networks.
        • It may be possible to leverage existing5G testbeds for testing the spectrum sharing technologies developed through applied research.
      • Spectrum-Sharing Technologies Considerations:
        • Research and development is costly, must be coordinated and administered, and its potential benefits are uncertain. Identifying a funding source, setting up the funding mechanism, or determining which existing funding streams to reallocate will require detailed analysis.
      • Coordinated Cybersecurity Monitoring Opportunities:
        • A coordinated monitoring program would help ensure the entire wireless ecosystem stays knowledgeable about evolving threats, in close to real time; identify cybersecurity risks; and allow stakeholders to act rapidly in response to emerging threats or actual network attacks.
      • Coordinated Cybersecurity Monitoring Considerations:
        • Carriers may not be comfortable reporting incidents or vulnerabilities, and determinations would need to be made about what information is disclosed and how the information will be used and reported.
      • Cybersecurity Requirements Opportunities
        • Taking these steps could produce a more secure network. Without a baseline set of security requirements the implementation of network security practices is likely to be piecemeal and inconsistent.
        • Using existing protocols or best practices may decrease the time and cost of developing and implementing requirements.
      • Cybersecurity Requirements Considerations
        • Adopting network security requirements would be challenging, in part because defining and implementing the requirements would have to be done on an application-specific basis rather than as a one-size-fits-all approach.
        • Designing a system to certify network components would be costly and would require a centralized entity, be it industry-led or government-led.
      • Privacy Practices Considerations
        • Development and adoption of uniform privacy practices would benefit from existing privacy practices that have been implemented by states, other countries, or that have been developed by federal agencies or other organizations.
      • Privacy Practices Opportunities
        • Privacy practices come with costs, and policymakers would need to balance the need for privacy with the direct and indirect costs of implementing privacy requirements. Imposing requirements can be burdensome, especially for smaller entities.
      • High-band Research Opportunities
        • Could result in improved statistical modeling of antenna characteristics and more accurately representing propagation characteristics.
        • Could result in improved understanding of any possible health effects from long-term radio frequency exposure to high-band emissions.
      • High-band Research Considerations
        • Research and development is costly and must be coordinated and administered, and its potential benefits are uncertain. Policymakers will need to identify a funding source or determine which existing funding streams to reallocate.

Coming Events

  • The Senate Judiciary Committee will hold an executive session at which the “Online Content Policy Modernization Act” (S.4632), a bill to narrow the liability shield in 47 USC 230, may be marked up on 10 December.
  • On 10 December, the Federal Communications Commission (FCC) will hold an open meeting and has released a tentative agenda:
    • Securing the Communications Supply Chain. The Commission will consider a Report and Order that would require Eligible Telecommunications Carriers to remove equipment and services that pose an unacceptable risk to the national security of the United States or the security and safety of its people, would establish the Secure and Trusted Communications Networks Reimbursement Program, and would establish the procedures and criteria for publishing a list of covered communications equipment and services that must be removed. (WC Docket No. 18-89)
    • National Security Matter. The Commission will consider a national security matter.
    • National Security Matter. The Commission will consider a national security matter.
    • Allowing Earlier Equipment Marketing and Importation Opportunities. The Commission will consider a Notice of Proposed Rulemaking that would propose updates to its marketing and importation rules to permit, prior to equipment authorization, conditional sales of radiofrequency devices to consumers under certain circumstances and importation of a limited number of radiofrequency devices for certain pre-sale activities. (ET Docket No. 20-382)
    • Promoting Broadcast Internet Innovation Through ATSC 3.0. The Commission will consider a Report and Order that would modify and clarify existing rules to promote the deployment of Broadcast Internet services as part of the transition to ATSC 3.0. (MB Docket No. 20-145)

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Tima Miroshnichenko from Pexels